Exhibit 4.4
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MUTUAL GROUP, LTD.,
Issuer
MUTUAL RISK MANAGEMENT LTD.,
Guarantor
to
THE CHASE MANHATTAN BANK,
as Trustee
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JUNIOR SUBORDINATED INDENTURE
Dated as of ________ __, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.1. Definitions............................................................................................. 2
Section 1.2. Compliance Certificates and Opinions.................................................................... 11
Section 1.3. Forms of Documents Delivered to Trustee................................................................. 12
Section 1.4. Acts of Holders; Record Dates........................................................................... 13
Section 1.5. Notices, Etc. to Trustee, Company and the Guarantor..................................................... 14
Section 1.6. Notice to Holders; Waiver............................................................................... 15
Section 1.7. Conflict with Trust Indenture Act....................................................................... 15
Section 1.8. Effect of Headings and Table of Contents................................................................ 15
Section 1.9. Successors and Assigns.................................................................................. 15
Section 1.10. Separability Clause.................................................................................... 16
Section 1.11. Benefits of Indenture.................................................................................. 16
Section 1.12. Governing Law.......................................................................................... 16
Section 1.13. Non-Business Days...................................................................................... 16
Section 1.14. Indenture and Securities Solely Corporate Obligations.................................................. 16
Section 1.15. Submission to Jurisdiction............................................................................. 17
ARTICLE II
Security Forms
Section 2.1. Forms Generally........................................................................................ 17
Section 2.2. Form of Face of Security............................................................................... 17
Section 2.3. Form of Reverse of Security............................................................................ 20
Section 2.4. Additional Provisions Required in Global Security...................................................... 23
Section 2.5. Additional Provisions Required in Guaranteed Security.................................................. 23
Section 2.6. Form of Trustee's Certificate of Authentication........................................................ 23
ARTICLE III
The Securities
Section 3.1. Title and Terms........................................................................................ 24
Section 3.2. Denominations.......................................................................................... 27
Section 3.3. Execution, Authentication, Delivery and Dating......................................................... 27
Section 3.4. Temporary Securities................................................................................... 28
Section 3.5. Global Securities...................................................................................... 29
Section 3.6. Registration, Transfer and Exchange.................................................................... 30
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Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities....................................................... 31
Section 3.8. Payment of Interest and Additional Interest; Interest Rights Preserved................................. 32
Section 3.9. Persons Deemed Owners.................................................................................. 33
Section 3.10. Cancellation.......................................................................................... 33
Section 3.11. Computation of Interest............................................................................... 34
Section 3.12. Deferrals of Interest Payment Dates................................................................... 34
Section 3.13. Right of Set-Off...................................................................................... 35
Section 3.14. Agreed Tax Treatment.................................................................................. 35
Section 3.15. Shortening and Extending Stated Maturity.............................................................. 35
Section 3.16. CUSIP Numbers......................................................................................... 36
ARTICLE IV
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture................................................................ 36
Section 4.2. Application of Trust Money............................................................................. 37
ARTICLE V
Remedies
Section 5.1. Events of Default...................................................................................... 38
Section 5.2. Acceleration of Maturity; Rescission and Annulment..................................................... 40
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee........................................ 41
Section 5.4. Trustee May File Proofs of Claim....................................................................... 42
Section 5.5. Trustee May Enforce Claims Without Possession of Securities............................................ 42
Section 5.6. Application of Money Collected......................................................................... 43
Section 5.7. Limitation on Suits.................................................................................... 43
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium, Interest and
Additional Tax Sums; Direct Action by Holders of Preferred Securities.............................. 44
Section 5.9. Restoration of Rights and Remedies.................................................................... 44
Section 5.10. Rights and Remedies Cumulative........................................................................ 44
Section 5.11. Delay or Omission Not Waiver.......................................................................... 45
Section 5.12. Control by Holders.................................................................................... 45
Section 5.13. Waiver of Past Defaults............................................................................... 45
Section 5.14. Undertaking for Costs................................................................................. 46
Section 5.15. Waiver of Usury, Stay or Extension Laws............................................................... 46
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ARTICLE VI
The Trustee
Section 6.1. Certain Duties and Responsibilities.................................................................... 46
Section 6.2. Notice of Defaults..................................................................................... 47
Section 6.3. Certain Rights of Trustee.............................................................................. 47
Section 6.4. Not Responsible for Recitals or Issuance of Securities................................................. 48
Section 6.5. May Hold Securities.................................................................................... 48
Section 6.6. Money Held in Trust.................................................................................... 49
Section 6.7. Compensation and Reimbursement......................................................................... 49
Section 6.8. Conflicting Interests.................................................................................. 50
Section 6.9. Corporate Trustee Required; Eligibility................................................................ 50
Section 6.10. Resignation and Removal; Appointment of Successor..................................................... 50
Section 6.11. Acceptance of Appointment by Successor................................................................ 51
Section 6.12. Merger, Conversion, Consolidation or Succession to Business........................................... 52
Section 6.13. Preferential Collection of Claims Against Company..................................................... 53
Section 6.14. Appointment of Authenticating Agent................................................................... 53
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.............................................. 54
Section 7.2. Preservation of Information; Communications to Holders................................................. 55
Section 7.3. Reports by Trustee..................................................................................... 55
Section 7.4. Reports by Company..................................................................................... 55
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms................................................... 56
Section 8.2. Successor Company Substituted.......................................................................... 56
Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms................................................. 57
Section 8.4. Successor Guarantor Substituted........................................................................ 58
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ARTICLE IX
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of Holders..................................................... 58
Section 9.2. Supplemental Indentures With Consent of Holders........................................................ 59
Section 9.3. Execution of Supplemental Indentures................................................................... 61
Section 9.4. Effect of Supplemental Indentures...................................................................... 61
Section 9.5. Conformity with Trust Indenture Act.................................................................... 61
Section 9.6. Reference in Securities to Supplemental Indentures..................................................... 61
ARTICLE X
covenants
Section 10.1. Payment of Principal, Premium and Interest ........................................................... 62
Section 10.2. Maintenance of Office or Agency....................................................................... 62
Section 10.3. Money for Security Payments to be Held in Trust....................................................... 62
Section 10.4. Statement by Officers as to Compliance................................................................ 63
Section 10.5. Statement by Guarantor's Officers as to Compliance.................................................... 64
Section 10.6. Original Issue Discount............................................................................... 64
Section 10.7. Additional Tax Sums................................................................................... 64
Section 10.8. Additional Covenants.................................................................................. 64
Section 10.9. Waiver of Certain Covenants........................................................................... 65
ARTICLE XI
Redemption of securities
Section 11.1. Applicability of Article.............................................................................. 66
Section 11.2. Election to Redeem; Notice to Trustee................................................................. 66
Section 11.3. Selection of Securities to be Redeemed................................................................ 66
Section 11.4. Notice of Redemption.................................................................................. 67
Section 11.5. Deposit of Redemption Price........................................................................... 68
Section 11.6. Payment of Securities Called for Redemption........................................................... 68
Section 11.7. Securities Redeemed in Part........................................................................... 69
Section 11.8. Right of Redemption of Securities Initially Issued to an Trust........................................ 69
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ARTICLE XII
Sinking Funds
Section 12.1. Applicability of Article.............................................................................. 69
Section 12.2. Satisfaction of Sinking Fund Payments with Securities................................................. 70
Section 12.3. Redemption of Securities for Sinking Fund............................................................. 70
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance........................................ 71
Section 13.2. Defeasance and Discharge............................................................................ 72
Section 13.3. Covenant Defeasance................................................................................. 72
Section 13.4. Conditions to Defeasance or Covenant Defeasance..................................................... 73
Section 13.5. Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions........................................................................ 74
Section 13.6. Reinstatement....................................................................................... 75
Section 13.7. Qualifying Trustee.................................................................................. 75
ARTICLE XIV
Subordination of Securities
Section 14.1. Securities Subordinate Company to Senior Debt........................................................ 75
Section 14.2. No Payment When Company Senior Debt in Default; Payment Over of Proceeds
Upon Dissolution, Etc............................................................................. 75
Section 14.3. Payment Permitted If No Default...................................................................... 77
Section 14.4. Subrogation to Rights of Holders of Company Senior Debt.............................................. 77
Section 14.5. Provisions Solely to Define Relative Rights.......................................................... 78
Section 14.6. Trustee to Effectuate Subordination.................................................................. 78
Section 14.7. No Waiver of Subordination Provisions................................................................ 78
Section 14.8. Notice to Trustee.................................................................................... 79
Section 14.9. Reliance on Judicial Order or Certificate of Liquidating Agent....................................... 79
Section 14.10. Trustee Not Fiduciary for Holders of Company Senior Debt............................................. 79
Section 14.11. Rights of Trustee as Holder of Company Senior Debt; Preservation of Trustee's
Rights............................................................................................ 80
Section 14.12. Article Applicable to Paying Agents.................................................................. 80
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ARTICLE XV
Guarantee and Indemnity
Section 15.1. Applicability of Article............................................................................. 80
Section 15.2. The Guarantee........................................................................................ 80
Section 15.3. Net Payments......................................................................................... 80
Section 15.4 Guarantee Unconditional, etc......................................................................... 82
Section 15.5. Execution of Guarantee............................................................................... 83
Section 15.6. Form of Guarantee.................................................................................... 84
Section 15.7. Subrogation.......................................................................................... 87
Section 15.8. Indemnity............................................................................................ 87
ARTICLE XVI
Subordination of Guarantee
Section 16.1. Guarantee Subordinate to Guarantor Senior Debt....................................................... 87
Section 16.2. No Payment When Guarantor Senior Debt in Default; Payment Over of Proceeds
Upon Dissolution, Etc............................................................................. 87
Section 16.3. Payment Permitted If No Default...................................................................... 89
Section 16.4. Subrogation to Rights of Holders of Guarantor Senior Debt............................................ 89
Section 16.5. Provisions Solely to Define Relative Rights.......................................................... 89
Section 16.6. Trustee to Effectuate Subordination.................................................................. 90
Section 16.7. No Waiver of Subordination Provisions................................................................ 90
Section 16.8. Notice to Trustee.................................................................................... 90
Section 16.9. Reliance on Judicial Order or Certificate of Liquidating Agent....................................... 91
Section 16.10. Trustee Not Fiduciary for Holders of Guarantor Senior Debt........................................... 91
Section 16.11. Rights of Trustee as Holder of Guarantor Senior Debt; Preservation of Trustee's
Rights............................................................................................ 91
Section 16.12. Article Applicable to Paying Agents.................................................................. 92
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..............................................................
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
(S) 310(a)(1) ........................................................ 6.9
(a)(2) ........................................................ 6.9
(a)(3) ........................................................ Not Applicable
(a)(4) ........................................................ Not Applicable
(b) ........................................................ 6.8
6.10
(S) 311(a) ........................................................ 6.13
(b) ........................................................ 6.13
(S) 312(a) ........................................................ 7.1
7.2
(b) ........................................................ 7.2
(c) ........................................................ 7.2
(S) 313(a) ........................................................ 7.3
(b) ........................................................ 7.3
(c) ........................................................ 7.3
(d) ........................................................ 7.3
(S) 314(a) ........................................................ 7.4
(a)(4) ........................................................ 1.2
10.4
10.5
(b) ........................................................ Not Applicable
(c)(1) ........................................................ 1.2
(c)(2) ........................................................ 1.2
(c)(3) ........................................................ Not Applicable
(d) ........................................................ Not Applicable
(e) ........................................................ 10.2
(S) 315(a) ........................................................ 6.1
(b) ........................................................ 6.2
(c) ........................................................ 6.1
(d) ........................................................ 6.1
(e) ........................................................ 5.14
(S) 316(a) ........................................................ 5.12
(a)(1) (A) ........................................................ 5.2
5.12
(a)(1) (B) ........................................................ 5.13
(a)(2) ........................................................ Not Applicable
(b) ........................................................ 5.8
(c) ........................................................ 1.4
(S) 317(a)(1) ........................................................ 5.3
(a)(2) ........................................................ 5.4
(b) ........................................................ 10.3
(S) 318(a) ........................................................ 10.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
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JUNIOR SUBORDINATED INDENTURE, dated as of ________ __, 2000, among
MUTUAL GROUP LTD., a corporation duly organized and existing under the laws of
the State of Delaware (the "Company"), having its principal office at One Logan
Square, Suite 1500, Philadelphia, Pennsylvania 19103, MUTUAL RISK MANAGEMENT
LTD., a corporation duly organized and existing under the laws of Bermuda
(herein called the "Guarantor"), having its principal office at 44 Church
Street, Hamilton HM12 Bermuda, and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Trustee (the "Trustee").
Recitals
Whereas, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its junior
subordinated debt securities in series (hereinafter called the "Securities") of
substantially the tenor hereinafter provided, including Securities issued to
evidence loans made to the Company of the proceeds from the issuance from time
to time by one or more business trusts (each a "Trust") of undivided preferred
beneficial interests in the assets of such Trusts (the "Preferred Securities")
and undivided common beneficial interests in the assets of such Trusts (the
"Common Securities" and, collectively with the Preferred Securities, the "Trust
Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided;
Whereas, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
Whereas, for value received, the Guarantor has duly authorized the
execution and delivery of this Indenture to provide for the issuance of the
Guarantee and the indemnity provided for herein.
Whereas, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done; and
Whereas, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
Now Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.1. Definitions.
For all purposes of this Indenture, 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 that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(4) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(5) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture;
(6) whenever the context may require, any gender shall be deemed
to include the others;
(7) the words "hereby," "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(8) the word "or" is always used inclusively (for example the
phrase "A or B" means "A or B or both," not "either A or B but not
both").
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Amounts" has the meaning specified in Section 15.3.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Securities of any series the payment of which has not been
made on the applicable Interest Payment Date in accordance with Section 3.12,
and which shall accrue at the rate per annum specified or determined as
specified in such Security.
"Additional Tax Sums" has the meaning specified in Section 10.7.
"Additional Taxes" means, in the case of Securities of a series
initially issued to a Trust, taxes, duties or other governmental charges imposed
on the Trust as a result of a Tax Event (which, for the sake of clarity, does
not include amounts required to be deducted or withheld by the Trust from
payments made by the Trust to or for the benefit of the Holder of, or any Person
that acquires a beneficial interest in, the Securities).
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Company or the Guarantor shall not be deemed to include any Trust to which
Securities and the Guarantee in respect thereof have been issued. 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.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
a day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to a Trust for so long as such Securities are held by
such Trust, the "Corporate Trust Office" (as defined in the related Trust
Agreement) of the Property Trustee under the related Trust Agreement, is closed
for business.
"Calculation Agent" with respect to Securities of any series that bear
interest determined by reference to a Floating Rate Index, means the Person
designated as Calculation Agent by the Company pursuant to Section 3.1 with
respect to such series.
"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 at such time.
"Common Securities" has the meaning specified in the first recital of
this Indenture.
"Common Shares" means the common shares, par value $0.01 per share, of
the Company.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board
of Directors, its Vice Chairman of the Board of Directors, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Company Senior Debt" means the principal of, any premium and interest
on (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) and other
amounts in respect of all Debt of the Company, whether incurred on or prior to
the date of this Indenture or thereafter incurred, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such obligations are not superior in right of payment to the
Securities or to other Debt that is pari passu with, or subordinated to, the
Securities, provided, that Company Senior Debt shall not be deemed to include
(a) any Securities, (b) any Debt of the Company that, when incurred and without
respect to any election under Section 1111(b) of the Bankruptcy Reform Act of
1978, was without recourse to the Company, (c) any Debt of the Company to any of
its Subsidiaries, (d) any Debt of the Company to any employee of the Company,
and (e) trade accounts payable of the Company.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of this Indenture is located at 450 West
33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services.
"Covenant Defeasance" has the meaning specified in Section 13.3.
"Debt" means, with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent and without
duplication, (i) every obligation of such Person for money borrowed; (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person; (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable); (v) every capital lease obligation of
such Person; (vi) every obligation of such Person pursuant to derivative
products, including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; (vii) every obligation of
the type referred to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or indirectly, as
obligor or otherwise; and (viii) any renewals, extensions, refundings,
amendments or modifications of any obligation of the type referred to in clauses
(i) through (vii).
"Defaulted Interest" has the meaning specified in Section 3.8.
"Defeasance" has the meaning specified in Section 13.2.
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"Delaware Trustee" means, with respect to any Trust, the Person
identified as the "Delaware Trustee" in the related Trust Agreement, solely in
its capacity as Delaware Trustee of such Trust under such Trust Agreement and
not in its individual capacity, or its successor in interest in such capacity,
or any successor Delaware trustee appointed as therein provided.
"Depositary" means, with respect to Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, an
organization registered as a clearing agency under the Exchange Act that is
designated as Depositary by the Company pursuant to Section 3.1 with respect to
such Securities.
"Discount Security" means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions," with respect to the Trust Securities issued by a
Trust, means amounts payable in respect of such Trust Securities as provided in
the related Trust Agreement and referred to therein as "Distributions."
"Dollar" or "$" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public and
private debts.
"Event of Default," unless otherwise specified with respect to a series
of Securities as contemplated by Section 3.1, has the meaning specified in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4(g).
"Extension Period" has the meaning specified in Section 3.12.
"Floating Rate Index" means, with respect to Securities of any series
that bear a floating interest rate, the index specified as the Floating Rate
Index by the Company pursuant to Section 3.1 with respect to such series.
"Global Security" means a Security that evidences all or part of the
Securities of any series and that bears the legend set forth in Section 2.4 (or
such legend as may be specified as contemplated by Section 3.1) issued to the
Depositary or its nominee for such series, and registered in the name of such
Depositary or its nominee.
"Government Obligation" means (a) any security which is (i) a direct
obligation of the United States of America or the government that issued the
foreign currency in which such Securities are or may be payable for the payment
of which the full faith and credit of the United States of America or such
foreign government is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such foreign government the payment of which is uncondi-
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tionally guaranteed as a full faith and credit obligation by the United States
of America or such foreign government, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (b) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any Government Obligation which is
specified in clause (a) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any Government Obligation which is so specified and
held, provided, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt.
"Guarantee" means the unconditional guarantee of the payment of the
principal of, any premium or interest and all other amounts due on, or in
respect of, the Securities and of the obligations of the Company under this
Indenture and the Securities by the Guarantor, as more fully set forth in
Article XV.
"Guarantee Agreements" means, with respect to any Trust, the Guarantee
Agreements executed by the Company and by the Guarantor for the benefit of the
Holders of the Preferred Securities issued by such Trust as modified, amended or
supplemented from time to time.
"Guaranteed Security" means a Security authenticated and delivered
pursuant to this Indenture with a Guarantee endorsed on such Security, which
Guarantee is substantially in the form described in Section 15.6 (except as
otherwise permitted by Section 2.5) and executed pursuant to the provisions of
Article XV.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Board of Directors" means the board of directors of the
Guarantor or any duly authorized committee of that board.
"Guarantor Board Resolution" means a copy of a resolution, certified by
the Secretary or an Assistant Secretary of the Guarantor to have been duly
adopted by the Guarantor's Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Guarantor's Officers' Certificate" means a certificate signed by the
Chairman of the Guarantor's Board of Directors, a Vice Chairman of the
Guarantor's Board of Directors, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Guarantor and delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" mean, respectively, a written
request or order signed in the name of the Guarantor by its Chairman of the
Board of Directors, its Vice Chairman of the Board of Directors, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Guarantor Senior Debt" means the principal of, any premium and
interest on (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization relating to the Guarantor
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whether or not such claim for post-petition interest is allowed in such
proceeding) and other amounts in respect of all Debt of the Guarantor, whether
incurred on or prior to the date of this Indenture or thereafter incurred,
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations are not superior
in right of payment to the Guarantee or to other Debt that is pari passu with,
or subordinated to, the Guarantee, provided, that Guarantor Senior Debt shall
not be deemed to include (a) any Guarantee, (b) any Debt of the Guarantor that,
when incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Reform Act of 1978, was without recourse to the Guarantor, (c) any
Debt of the Guarantor to any of its Subsidiaries, (d) any Debt of the Guarantor
to any employee of the Guarantor and (e) trade accounts payable of the Guarantor
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be amended or supplemented by one or more amendments or
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof including, for all purposes of this instrument and any such
amendment or supplemental indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any such
amendment or supplemental indenture, respectively. The term "Indenture" shall
also include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means, with respect to any Security, the Stated
Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 or
any successor statute thereto, in each case as amended from time to time.
"Investment Company Event" means the receipt by a Trust of an Opinion
of Counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a written change (including any
announced prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that such Trust is or will
be considered an "investment company" that is required to be registered under
the Investment Company Act, which change or prospective change becomes effective
or would become effective, as the case may be, on or after the date of the
issuance of the Preferred Securities of such Trust.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or any installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(d) or 5.1(e).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company and delivered to the Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company or the Guarantor or any Affiliate of
the Company or the Guarantor.
"Original Issue Date" means the date of issuance specified as such in
each Security.
"Outstanding" means, when used with respect to any Securities, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or the Guarantor) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent or the Guarantor shall act as Paying Agent )
for the Holders of such Securities; provided, that if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 13.2;
(iv) Securities which have been paid pursuant to Section 3.7
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to the provisions of this
Indenture unless proof satisfactory to the Trustee is presented that
any such Securities are held by a bona fide purchaser in whose hands
such Securities are valid, binding and legal obligations of the
Company; and
(v) Securities converted or exchanged into other securities of
the Company if the terms of such Securities provide for conversion or
exchange pursuant to Section 3.1;
provided, that in determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company,
the Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, the Guarantor or such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities that a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company, the
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, the Guarantor or such other obligor. Upon the written request of the
Trustee, the Company or the Guarantor shall furnish to the Trustee promptly an
Officers' Certificate or a Guarantor's Officer's Certificate listing and
identifying all Securities, if any, known by the Company or the Guarantor to be
owned or held by or for the account of the Company, the Guarantor or any other
obligor on the Securities or any Affiliate of the Company, the Guarantor or such
obligor, and subject to the provisions of Section 6.1, the Trustee shall be
entitled to accept such Officers' Certificate or Guarantor's Officer's
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all
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Securities not listed therein are Outstanding for the purpose of any such
determination. Notwithstanding anything herein to the contrary, Securities of
any series initially issued to a Trust that are owned by such Trust shall be
deemed to be Outstanding notwithstanding the ownership by the Company or an
Affiliate of any beneficial interest in such Trust.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, any premium or interest on or other amounts with respect to any
Securities on behalf of the Company and any Person authorized by the Guarantor
to pay amounts due with respect to the Guarantee on behalf of the Guarantor.
"Person" means any legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, government or any agency
or political subdivision thereof or any other entity of whatever nature.
"Place of Payment" means, with respect to the Securities of any series,
the place or places where the principal of, any premium and interest on or other
amounts with respect to the Securities of such series are payable as specified
pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any Security
authenticated and delivered under Section 3.7 in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the first recital
of this Indenture.
"Proceeding" means, in respect of any Person, (i) any insolvency,
bankruptcy, receivership, liquidation, reorganization, readjustment, composition
or other similar proceedings relating to such Person, its creditors or its
property, (ii) any proceeding for the liquidation, dissolution or other winding
up of such Person, voluntary or involuntary, whether or not involving insolvency
or bankruptcy proceedings, (iii) any assignment by such Person for the benefit
of creditors or (iv) any other marshaling of the assets of such Person.
"Property Trustee" means, with respect to any Trust, the Person
identified as the "Property Trustee" in the related Trust Agreement, solely in
its capacity as Property Trustee of such Trust under such Trust Agreement and
not in its individual capacity, or its successor in interest in such capacity,
or any successor property trustee appointed as therein provided.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed fixed by or pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of
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such series, the date that is fifteen days next preceding such Interest Payment
Date (whether or not a Business Day).
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
senior trust officer, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Rights Plan" means a plan of the Company providing for the issuance by
the Company to all holders of its Common Shares of rights entitling the holders
thereof to subscribe for or purchase shares of any class or series of capital
stock of the Company which rights (i) are deemed to be transferred with such
shares of such Common Shares and (ii) are also issued in respect of future
issuances of such Common Shares, in each case until the occurrence of a
specified event or events.
"Securities" or "Security" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 or any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.6.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or any interest (including any Additional
Interest) thereon, or any Additional Amounts with respect thereto, means the
date specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest (including any Additional
Interest) is, or such other amounts are, due and payable, as such date may, in
the case of the Stated Maturity of the principal on any Security, be shortened
or extended as provided in such Security and this Indenture and, in the case of
any installment of interest, subject to the deferral of any such date in the
case of any Extension Period.
"Subsidiary" means, in respect of any Person, a Person more than 50% of
the outstanding voting stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries, or by such Person and one or more
other Subsidiaries. For purposes of this definition, "voting stock" means stock
that ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
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"Tax Event" means the receipt by an Trust of a Opinion of Counsel
experienced in such matters to the effect that, as a result of (a) any amendment
to or change (including any announced prospective change) in the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein or (b) any judicial decision or any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum or field service advice) or regulatory procedure (an
"Administrative Action"), regardless of whether such judicial decision or
Administrative Action is issued to or in connection with a proceeding involving
the Company or such Trust and whether or not subject to review or appeal, which
amendment, change, judicial decision or Administrative Action is enacted,
promulgated or announced, in each case, on or after the date hereof, there is
more than an insubstantial risk that (i) such Trust is, or will be within 90
days of the date of such opinion, subject to United States Federal income tax
with respect to income received or accrued on the securities held by such Trust,
(ii) interest payable by the Company or original issue discount accruing on
Securities issued to such Trust is not, or within 90 days of the date of such
opinion, will not be, deductible by the Company, in whole or in part, for United
States Federal income tax purposes, or (iii) such Trust is, or will be within 90
days of the date of such opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Trust" has the meaning specified in the first recital of this
Indenture.
"Trust Agreement" means, with respect to any Trust, the trust agreement
or other governing instrument of such Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and as in effect on the date of this Indenture; provided, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"Trust Securities" has the meaning specified in the first recital of
this Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, solely in its capacity as such and not in its
individual capacity, until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder and, if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
Section 1.2. Compliance Certificates and Opinions.
(a) Upon any application or request by the Company or the Guarantor
to the Trustee to take any action under any provision of this Indenture, the
Company or the Guarantor, as the case may be, shall furnish to the Trustee an
Officers' Certificate or a Guarantor's Officers' Certificate, as the case may
be, stating that all conditions precedent (including covenants compliance with
which constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent (including covenants compliance with which constitutes a condition
precedent), if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required
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by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Sections 10.4 and 10.5) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions in such certificate or
opinion are based;
(iii) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Forms of Documents Delivered to Trustee.
(a) 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.
(b) Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows after reasonable inquiry that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or the
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or the Guarantor, unless such counsel knows
after reasonable inquiry that the certificate or opinion or representations with
respect to such matters are erroneous.
(c) 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.
(d) Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Guarantor's Board Resolution, Officers' Certificate, Guarantor's
Officer's Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same
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force and effect as if originally received in the corrected form and,
irrespective of the date or dates of the actual execution and/or delivery
thereof, such substitute document or instrument shall be deemed to have been
executed and/or delivered as of the date or dates required with respect to the
document or instrument for which it is substituted. Without limiting the
generality of the foregoing, any Securities issued under the authority of such
defective document or instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture equally and ratably with
all other Outstanding Securities.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
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; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments is or are
delivered to the Trustee, and, where it is hereby expressly required, to the
Company or the Guarantor or both of them. Such instrument or instruments (and
the action embodied 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 shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee, the Company and the Guarantor and any agent of the Trustee, the Company
and the Guarantor, 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 a 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 or her the execution thereof.
Where such execution is by a Person acting in other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. 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 that the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Company or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided, that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in paragraph (f) of this Section.
If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no
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other Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date, provided, that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect). Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
1.6.
(f) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(b) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, provided, that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect). Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Company's expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
1.6.
(g) With respect to any record date set pursuant to paragraph (e) or
(f) of this Section, the party hereto that sets such record date may designate
any day as the "Expiration Date" and from time to time may change the Expiration
Date to any earlier or later day; provided, that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the
other parties hereto in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6, on or prior to the
existing Expiration Date. If an Expiration Date is not designated with respect
to any record date set pursuant to this Section, the party hereto that set such
record date shall be deemed to have initially designated the 180th day after
such record date as the Expiration Date with respect thereto, subject to its
right to change the Expiration Date as provided in this paragraph.
(h) Without limiting the foregoing, a Holder entitled to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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Section 1.5. Notices, Etc. to Trustee, Company and the Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder, any holder of Preferred Securities,
the Company or the Guarantor shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(b) the Company or the Guarantor, as the case may be, by the Trustee,
any Holder or any holder of Preferred Securities shall be sufficient for every
purpose (except as otherwise provided in Section 5.1) hereunder if in writing
and mailed, first class, postage prepaid, to the Company or the Guarantor, as
the case may be, addressed to it at the address of its principal office
specified in the first paragraph of this instrument, Attention: General Counsel,
in the case of the Company, and Attention: General Counsel, in the case of the
Guarantor, or at any other address previously furnished in writing to the
Trustee by the Company or the Guarantor, as the case may be.
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)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. If, by
reason of the suspension of or irregularities in regular mail service or for any
other reason, it shall be impossible or impracticable to mail notice of any
event to Holders when said notice is required to be given pursuant to any
provision of this Indenture or of any Security, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be 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, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Section 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required under the Trust
Indenture Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
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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. All covenants and
agreements in this Indenture by the Guarantor shall bind its successors and
assigns, whether so expressed or not.
Section 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities or the Guarantee,
express or implied, shall give to any Person, other than the parties hereto and
their successors and assigns, the holders of Company Senior Debt and Guarantor
Senior Debt, the Holders of the Securities and, to the extent expressly provided
in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the holders of Preferred
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 1.12. Governing Law.
This Indenture, the Securities and the guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to the conflict of laws provisions thereof.
Section 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this
Section)) payment of interest, premium or principal on or other amounts in
respect of such Security need not be made on such date, but may be made on the
next succeeding Business Day (and no interest shall accrue in respect of the
amounts whose payment is so delayed for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, until such
next succeeding Business Day) except that, if such Business Day falls in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity.
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Section 1.14. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of, any premium or
interest on, or other amounts in respect of, any Security, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company or the Guarantor in this
Indenture or in any supplemental indenture, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or the Guarantor or of any successor company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as
consideration for, the execution of this Indenture and the issue of the
Securities.
Section 1.15. Submission to Jurisdiction.
Each of the Company and the Guarantor agrees that any judicial
proceedings instituted in relation to any matter arising under this Indenture or
the Securities may be brought in any United States Federal or New York State
court sitting in the Borough of Manhattan, The City of New York, New York to the
extent that such court has subject matter jurisdiction over the controversy,
and, by execution and delivery of this Indenture, each of the Company and the
Guarantor hereby irrevocably accepts, generally and unconditionally, the
jurisdiction of the aforesaid courts, acknowledges their competence and
irrevocably agrees to be bound by any judgment rendered in such proceeding. Each
of the Company and the Guarantor also irrevocably and unconditionally waives for
the benefit of the Trustee and the Holders of the Securities any immunity from
jurisdiction and any immunity from legal process (whether through services of
notice, attachment prior to judgment, attachment in the aid of execution,
execution or otherwise) in respect of this Indenture. Each of the Company and
the Guarantor hereby irrevocably designates and appoints for the benefit of the
Trustee and the Holders of the Securities for the term of this Indenture, CT
Corporation, 111 8th Avenue, New York, New York 10011, as its agent to receive
on its behalf service of all process (with a copy of all such service of process
to be delivered to Mutual Group Ltd., One Logan Square, Suite 1500,
Philadelphia, Pennsylvania 19103, Attention: General Counsel, and to Mutual Risk
Management Ltd., 44 Church Street, Hamilton HM12 Bermuda, Attention: General
Counsel) brought against it with respect to any such proceeding in any such
court in The City of New York, such service being hereby acknowledged by each of
the Company and the Guarantor to be effective and binding service on it in every
respect whether or not the Company or the Guarantor shall then be doing, or
shall have at any time done, business in New York. Such appointment shall be
irrevocable so long as any of the Securities or the obligations of the Company
or the Guarantor hereunder remain outstanding until the appointment of a
successor by the Company or the Guarantor and such successor's acceptance of
such appointment. Upon such acceptance, the Company and the Guarantor shall
notify the Trustee of the name and address of such successor. Each of the
Company and the Guarantor further agrees for the benefit of the Trustee and the
Holders of the Securities to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of said CT Corporation in full force
and effect so long as any of the Securities or the obligations of the Company or
the Guarantor hereunder shall be outstanding. The Trustee shall not be
obligated, and shall have no responsibility, with respect to any failure by the
Company or the Guarantor to take any such action. Nothing herein shall affect
the right of the Trustee or any Holder to institute proceedings against the
Company or the Guarantor in the courts of any other jurisdiction or
jurisdictions.
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ARTICLE II
Security Forms
Section 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms 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 applicable tax laws or the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of 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 with respect to
the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
Section 2.2. Form of Face of Security.
Mutual Group, Ltd.
[Title of Security]
No. $
MUTUAL GROUP, LTD., a corporation organized and existing under the laws
of the State of Delaware (hereinafter called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________, or registered assigns, the
principal sum of __________ Dollars on __________ __, ___ [if the Security is a
Global Security, then insert-- or such other principal amount represented hereby
as may be set forth in the records of the Securities Registrar hereinafter
referred to in accordance with the Indenture,] [; provided, that the Company may
shorten or extend the Stated Maturity of the principal of this Security to a
date not earlier than ________ and not later than ________ at any time on one or
more occasions, subject to certain conditions specified in Section 3.15 of the
Indenture.] The Company further promises to pay interest on said principal sum
from _________, ___ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, [monthly] [quarterly] [semi-
annually] [if applicable, insert--(subject to deferral as set forth
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herein)] in arrears on [insert applicable Interest Payment Dates] of each year,
commencing ________, ____, at the rate [if fixed rate, insert--of ___%] [if
floating rate, insert--equal to ____% in excess of the Floating Rate Index] per
annum, [if applicable, insert--together with Additional Tax Sums, if any, as
provided in Section 10.7 of the Indenture] until the principal hereof is paid or
duly provided for or made available for payment [if applicable, insert--;
provided, that any overdue principal, premium, Additional Amounts, Additional
Tax Sums and any overdue installment of interest shall bear additional interest
at the rate [if fixed rate, insert--of ___%] [if floating rate, insert--equal
to ___% in excess of the Floating Rate Index] per annum (to the extent that the
payment of such interest shall be legally enforceable), compounded [monthly]
[quarterly] [semi-annually], from the dates such amounts are due until they are
paid or made available for payment, and such interest shall be payable on
demand]. The amount of interest payable for any period less than a full interest
period shall be computed on the basis of a 360-day year of twelve 30- day months
and the actual days elapsed in a partial month in such period. The amount of
interest payable for any full interest period shall be computed by dividing the
applicable rate per annum by [twelve/four/two]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest installment [if applicable, insert--,
which shall be the [____________ or ____________] (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date]. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has occurred and
is continuing, the Company shall have the right, at any time during the term of
this Security, from time to time to defer the payment of interest on this
Security for up to _______ consecutive [monthly] [quarterly] [semi-annual]
interest payment periods with respect to each deferral period (each an
"Extension Period") [If applicable, insert--, during which Extension Periods the
Company shall have the right to make no payments or partial payments of interest
on any Interest Payment Date, and] at the end of which the Company shall pay all
interest then accrued and unpaid including any Additional Interest, as provided
below; provided, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security [If Stated Maturity can be shortened
or extended, insert--, as then in effect,] and no such Extension Period may end
on a date other than an Interest Payment Date; and provided, further, that
during any such Extension Period, the Company shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock or (ii)
make any payment of principal of or any interest or premium on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu in
all respects with or junior in interest to this Security (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable
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Extension Period, (b) as a result of an exchange or conversion of any class or
series of the Company's capital stock (or any capital stock of a Subsidiary of
the Company) for any class or series of the Company's capital stock or of any
class or series of the Company's indebtedness for any class or series of the
Company's capital stock, (c) the purchase of fractional interests in shares of
the Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan, the issuance of
rights, stock or other property under any Rights Plan or the redemption or
repurchase of rights pursuant thereto or (e) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or junior to
such stock). Prior to the termination of any such Extension Period, the Company
may further defer the payment of interest, provided, that no Extension Period
shall exceed ______ consecutive [monthly] [quarterly] [semi-annual] interest
payment periods, extend beyond the Stated Maturity of the principal of this
Security or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due on any Interest Payment
Date, the Company may elect to begin a new Extension Period, subject to the
above conditions. No interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension shall bear Additional
Interest (to the extent that the payment of such interest shall be legally
enforceable) at the rate of [if fixed rate, insert -- ______%] [if floating
rate, insert -- equal to _____% in excess of the Floating Rate Index] per annum,
compounded [monthly] [quarterly] [semi-annually] and calculated as set forth in
the first paragraph of this Security, from the dates on which amounts would
otherwise have been due and payable until paid or made available for payment.
The Company shall give the Holder of this Security and the Trustee notice of its
election to begin any Extension Period at least one Business Day prior to the
next succeeding Interest Payment Date on which interest on this Security would
be payable but for such deferral [if applicable, insert--or so long as such
Securities are held by [insert name of applicable Trust], at least one Business
Day prior to the earlier of (i) the next succeeding date on which Distributions
on the Preferred Securities of such Trust would be payable but for such deferral
and (ii) the date on which the Administrative Trustees of such Trust are
required to give notice to holders of such Preferred Securities of the record
date or the date such Distributions are payable].
Payment of the principal of and any premium and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the [insert Place of Payment], in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert--; provided, that at the option
of the Company payment of interest may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Securities Register or (ii) by wire transfer to an account at a banking
institution in the United States that the Holder designates in writing to the
Trustee at least 10 Business Days prior to the Interest Payment Date].
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Company Senior Debt, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such actions as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, waives
all notice of the acceptance of the subordination provisions
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contained herein and in the Indenture by each holder of Company Senior Debt,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MUTUAL GROUP, LTD.
By: ____________________________________
Name:
Title:
Attest:
__________________________________
[Secretary or Assistant Secretary]
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under the Junior Subordinated Indenture, dated as of ________, _____
(herein called the "Indenture"), among the Company, Mutual Risk Management Ltd.
(the "Guarantor," which term includes any successor guarantor under the
Indenture) and The Chase Manhattan Bank as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Guarantor, the Trustee, the holders of Company
Senior Debt, the holders of Guarantor Senior Debt and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert--, limited in aggregate principal amount
to $_______].
All terms used in this Security that are defined in the Indenture [if
applicable, insert--or in the Amended and Restated Trust Agreement, dated as of
_________, ___ (as modified, amended or supplemented from time to time, the
"Trust Agreement"), relating to [insert name of Trust] (the "Trust") among the
Company, as Depositor and Issuer, the Trustees named therein and the Holders
from time to time of the Trust Securities issued pursuant thereto,] shall have
the meanings assigned to them in the Indenture [if applicable, insert--or the
Trust Agreement, as the case may be].
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The terms of this Security include those stated in the Indenture and
those made a part of the Indenture by reference to the Trust Indenture Act. This
Security is subject to all such terms and the Holder of this Security is
referred to the Indenture and the Trust Indenture Act for a statement of such
terms.
[If applicable, insert--This Security is entitled to the benefit of the
Guarantee of the Guarantor. Reference is made to Article XV of the Indenture and
to the Guarantee for terms relating to such Guarantee.]
[If applicable, insert--The Company may at any time, at its option, on
or after _________, ____, and subject to the terms and conditions of Article XI
of the Indenture, redeem this Security in whole at any time or in part from time
to time, at [if applicable, insert-- the following Redemption Prices (expressed
as percentages of the principal amount hereof):
If redeemed during the 12-month period beginning _____________,
Redemption
Year Price
---- ----------
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, together, in the case of any such redemption, with accrued interest [if
applicable, insert--, including any Additional Interest,] to but excluding the
date fixed for redemption,] [a Redemption Price equal to 100% of the principal
amount hereof, together, in the case of any such redemption, with accrued
interest [if applicable, insert--, including any Additional Interest,] to but
excluding the date fixed for redemption.]
[If applicable, insert--In addition, upon the occurrence and during the
continuation of a Tax Event or an Investment Company Event in respect of the
Trust, the Company may, at its option, at any time within 90 days of the
occurrence and during the continuation of such Tax Event or Investment Company
Event, as the case may be, redeem this Security, in whole but not in part,
subject to the terms and conditions of Article XI of the Indenture, at a
redemption price equal to [insert formula].
[If the Security is subject to redemption of any kind, insert--In the
event of redemption of this Security in part only, a new Security or Securities
of this series for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Securities of this series are not
redeemable prior to Stated Maturity.]
[The Indenture contains provisions for satisfaction and discharge of
[the entire indebtedness of] [or] [certain restrictive covenants and Events of
Default with respect to] this Security [, in each case] upon compliance by the
Company or the Guarantor with certain conditions set forth in the Indenture.]
The Indenture permits, with certain exceptions as therein provided, the
Company, the Guarantor and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in
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any manner the rights and obligations of the Company or the Guarantor, as the
case may be, and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company or the Guarantor, as the case may be, with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
[If the Security is not a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Company and, in
certain cases, the Guarantor (and to the Trustee if given by Holders) [if
applicable, insert--, provided, that, if upon an Event of Default, the Trustee
or such Holders fail to declare the principal of all the Outstanding Securities
of this series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Preferred Securities then Outstanding shall
have the right to make such declaration by a notice in writing to the Company
and the Trustee]; and upon any such declaration the principal amount of and the
accrued interest (including any Additional Interest) on all the Securities of
this series shall become immediately due and payable, provided, that the payment
of principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIV of the
Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest [insert if applicable--including any Additional Interest)] on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
for such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing,
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and thereupon one or more new Securities of this series, of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $____________ and any integral multiple of
$____________ in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and none of the Company, the Guarantor, the Trustee or any such agent
shall be affected by notice to the contrary.
The Company, the Guarantor, if applicable, and, by its acceptance of
this Security or a beneficial interest therein, the Holder of, and any Person
that acquires a beneficial interest in, this Security agree that for United
States Federal, state and local tax purposes it is intended that this Security
constitute indebtedness.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of laws provisions
thereof.
Section 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any Global
Security issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, bear a legend in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY
OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND 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,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE."
Section 2.5. Additional Provisions Required in Guaranteed Security.
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Any Guaranteed Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2, 2.3 and 2.4 (if applicable), have endorsed
thereon the Guarantee in substantially the form set forth in Section 15.6 or in
such other form as shall be established by or pursuant to a Guarantor Board
Resolution, or established 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.
Section 2.6. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within- mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
By: ____________________________________
Authorized officer
ARTICLE III
The Securities
Section 3.1. Title and Terms.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and set forth in an Officers'
Certificate or established in one or more indentures supplemental hereto:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of
the Securities of such series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to the provisions of this
Indenture and except for any Securities that, pursuant to Section 3.3,
are deemed never to have been authenticated and delivered hereunder);
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(c) the Stated Maturity or Maturities on which the principal of
the Securities of such series is payable or the method of determination
thereof, and any dates on which or circumstances under which, the
Company shall have the right to extend or shorten such Stated Maturity
or Maturities;
(d) the rate or rates at which the Securities of such series
shall bear interest, if any, and, if such interest is determined by
reference to a floating interest rate, the Floating Rate Index and
Calculation Agent, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such
series, the date or dates from which any such interest or Additional
Interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the right, pursuant to Section 3.12 or as
otherwise set forth therein, of the Company to defer or extend an
Interest Payment Date, and the Regular Record Date for the interest
payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of and any premium
and interest (including any Additional Interest) on the Securities of
such series shall be payable, the place or places where the Securities
of such series and any related Guarantee may be presented for
registration of transfer or exchange, any restrictions that may be
applicable to any such transfer or exchange in addition to or in lieu
of those set forth herein, and the place or places where notices and
demands to or upon the Company or the Guarantor in respect of the
Securities of such series and any related Guarantee may be made;
(f) the obligation of the Company to redeem, repay or purchase
the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions, or at the option of the Company
or a Holder thereof, and the period or periods within which, the price
or prices at which, the currency or currencies (including currency unit
or units) in which and the other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation or option;
(g) if the amount of principal of or any premium or interest on
any Securities of such series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(h) if other than Dollars, the currency or currencies (including
any currency unit or units) in which the principal of and any premium
and interest (including any Additional Interest) on the Securities of
the series shall be payable, or in which the Securities of the series
shall be denominated and the manner of determining the equivalent
thereof in Dollars for any purpose, including for purposes of the
definition of Outstanding;
(i) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the
amount so payable or the manner in which such amount shall be
determined;
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(j) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series that shall be payable
upon declaration of acceleration of the Maturity thereof;
(k) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined;
(l) if applicable, that the Securities of the series, in whole
or any specified part, shall be defeasible pursuant to Section 13.2 or
Section 13.3 or both such Sections;
(m) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends that shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Section 2.4 and any circumstances in addition to or in lieu of
those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(n) the additions, modifications or deletions, if any, in the
Events of Default or covenants of the Company, the Guarantor set forth
herein with respect to the Securities of such series;
(o) the appointment of any Paying Agent or agents for the
Securities of such series;
(p) the terms of any right to convert or exchange Securities of
such series into any other securities or property of the Company, and
the additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(q) if such Securities are to be initially issued to a Trust,
the form or forms of the Trust Agreement and Guarantee Agreement
relating thereto;
(r) if other than as set forth herein, the relative degree, if
any, to which the Securities of the series and the Guarantee in respect
thereof, if any, shall be senior to or be subordinated to other series
of Securities and the Guarantee in respect thereof, if any, in right of
payment, whether such other series of Securities are Outstanding or
not;
(s) the denominations in which any Securities of such series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(t) if applicable, whether such Securities shall not be
Guaranteed Securities; and
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(u) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this Indenture,
except as permitted by Section 9.1(e)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or in
or pursuant to such Board Resolution and set forth in such Officers' Certificate
or in any indenture supplemental hereto.
If any of the terms of the series are 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 Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Company
Senior Debt as provided in Article XIV.
Section 3.2. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and in denominations of $1,000 and any integral multiple of
$1,000 in excess thereof, unless otherwise specified as contemplated by Section
3.1.
Section 3.3. Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(b) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication with, if applicable,
the Guarantee endorsed thereon duly executed by the Guarantor, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating:
(i) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
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(ii) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in conformity with the provisions of this
Indenture; and
(iii) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
indemnities or immunities under the Securities and this Indenture or otherwise
in a manner that is not reasonably acceptable to the Trustee.
(c) Notwithstanding the provisions of Section 3.1 and of paragraph
(b) of this Section, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to paragraph (b) of this Section
at or prior to the authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
(d) No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.10, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(e) Each Security shall be dated the date of its authentication.
Section 3.4. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, with, if applicable, a temporary Guarantee endorsed thereon duly
executed by the Guarantor and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. A temporary
Guarantee shall be substantially in the form of the definitive Guarantee in lieu
of which it is issued, but with such omissions, insertions and variations as may
be appropriate for a temporary Guarantee, all as may be determined by the
Guarantor.
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(b) If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Securities with, if applicable, a Guarantee endorsed thereon duly executed by
the Guarantor. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
Section 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary advises the Trustee and the Company in
writing that such Depositary is no longer willing or able to properly discharge
its responsibilities as Depositary with respect to such Global Security and no
qualified successor is appointed by the Company within 90 days of receipt by the
Company of such notice, (ii) such Depositary has ceased to be a clearing agency
registered under the Exchange Act and no qualified successor is appointed by the
Company within 90 days after its receipt of notice or its becoming aware of such
event, (iii) the Company executes and delivers to the Trustee a Company Order
stating that the Company elects to terminate the book-entry system through the
Depositary or (iv) there shall have occurred and be continuing an Event of
Default with respect to such Global Security.
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Securities Registrar for exchange or cancellation as provided
in this Article. If any Global Security is to be exchanged for other Securities
or canceled in part, or if another Security is to be exchanged in whole or in
part for a beneficial interest in any Global Security, then either (i) such
Global Security shall be so surrendered for exchange or cancellation as provided
in this Article or (ii) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal amount of such other Security to be so
exchanged for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Securities Registrar,
whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Security by the Depositary, accompanied by registration instructions, the
Trustee shall, subject to this Section and as otherwise provided in this
Article, authenticate and deliver any Securities issuable in exchange for such
Global Security (or any portion thereof) in accordance with the instructions of
the Depositary with, if applicable, a Guarantee endorsed thereon duly
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executed by the Guarantor. The Trustee shall not be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article, Section 9.6 or 11.7 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.
(e) Securities distributed to holders of Book-Entry Preferred
Securities (as defined in the applicable Trust Agreement) upon the dissolution
of a Trust shall be distributed in the form of one or more Global Securities
registered in the name of a Depositary or its nominee, and deposited with the
Securities Registrar, as custodian for such Depositary, or with such Depositary,
for credit by the Depositary to the respective accounts of the beneficial owners
of the Securities represented thereby (or such other accounts as they may
direct). Securities distributed to holders of Preferred Securities other than
Book-Entry Preferred Securities upon the dissolution of a Trust shall not be
issued in the form of a Global Security or any other form intended to facilitate
book-entry trading in beneficial interests in such Securities.
(f) The Depositary or its nominee, as the registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
Neither the Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Depositary.
(g) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
(h) The registered holder of a Global Security may grant proxies to any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture, the Guarantee and the Securities.
Section 3.6. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office a
register in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities (the "Securities Register"). The Trustee is hereby appointed
"Securities Registrar" for the purpose of registering Securities and transfers
of Securities as herein provided.
(b) Upon surrender for registration of transfer of any Security of a
series at the office or agency of the Company designated for that purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series
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of any authorized denominations and of like tenor and aggregate principal amount
with, if applicable, a Guarantee endorsed thereon duly executed by the
Guarantor.
(c) At the option of the Holder, Securities of a series may be
exchanged for other Securities of the same series of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities that the Holder making
the exchange is entitled to receive with, if applicable, a Guarantee endorsed
thereon duly executed by the Guarantor.
(d) All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
(e) Every Security presented or surrendered for transfer or exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or
such Holder's attorney duly authorized in writing.
(f) No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities.
(g) The Company shall not be required to issue, register the transfer
of or exchange any Security of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 11.3 and
ending at the close of business on the day of such mailing or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any such Security to be redeemed in
part.
(h) Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, that were carried by such other Security.
Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
(a) If any mutilated Security is surrendered to the Trustee together
with such security or indemnity as may be required by the Company or the Trustee
to save each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series,
of like tenor and aggregate principal amount and bearing a number not
contemporaneously outstanding with, if applicable, a Guarantee endorsed thereon
duly executed by the Guarantor.
(b) If there shall be delivered to the Company, the Guarantor, if
applicable, and the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them harmless, then, in the absence
of notice to the
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Company, the Guarantor or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series, of like tenor and principal amount
as such destroyed, lost or stolen Security and bearing a number not
contemporaneously outstanding with, if applicable, a Guarantee endorsed thereon
duly executed by the Guarantor.
(c) If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(e) Every new Security of any series issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company and the Guarantor, if
applicable, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
(f) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.8. Payment of Interest and Additional Interest; Interest
Rights Preserved.
(a) Except as otherwise contemplated by Section 3.1 with respect to any
series of Securities, interest and Additional Interest on any Security of any
series that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest in respect of Securities of such
series, except that, unless otherwise provided in the Securities of such series,
interest and any Additional Interest payable on the Stated Maturity, redemption
or repayment of the principal of a Security shall be paid to the Person to whom
principal is paid. The initial payment of interest on any Security of any series
that is issued between a Regular Record Date and the related Interest Payment
Date shall be payable as provided in such Security or in the Board Resolution
pursuant to Section 3.1 with respect to the related series of Securities.
(b) Any interest on any Security of any series that is due and payable,
but is not timely paid or duly provided for, on any Interest Payment Date for
Securities of such series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in paragraph (i) or (ii)
below:
(i) The Company or the Guarantor, if applicable, may elect to
make payment of any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the
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payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company or the Guarantor, if applicable, shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment at least 30 days prior to such date, and at the same
time the Company or the Guarantor, if applicable, shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest, which shall be not 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 the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company and the Guarantor, if applicable, of such Special Record
Date and, in the name and at the expense of the Company or the
Guarantor, if applicable, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series in the manner set
forth in Section 1.6 not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date; or
(ii) The Company or the Guarantor, if applicable, may make
payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed and, upon
such notice as may be required by such exchange, if, after notice given
by the Company or the Guarantor, if applicable, to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
(c) Unless otherwise provided in or pursuant to this Indenture or any
supplemental indenture, interest on the Securities of any series will be
payable, at the option of the Company or the Guarantor, (i) by check mailed to
the address of the Holder as such address appears in the Securities Register for
the Securities of such series or (ii) by wire transfer to an account at a
banking institution in the United States that the Holder designates in writing
to the Trustee at least 10 Business Days prior to the Interest Payment Date.
Section 3.9. Persons Deemed Owners.
(a) Prior to due presentment of a Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee shall treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving payment
of principal of, any premium and (subject to Section 3.8) interest on and any
other amounts with respect to such Security and for all other purposes
whatsoever, and none of the Company, the Guarantor, the Trustee or any agent of
the Company, the Guarantor or the Trustee shall be affected by notice to the
contrary.
(b) No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee as
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the owner of such Global Security for all purposes whatsoever. None of the
Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor
or the Trustee 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 maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Guarantor, the Trustee
or any agent of the Company, the Guarantor or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and such holders of beneficial
interests, the operation of customary practices governing the exercise of the
rights of the Depositary (or its nominee) as Holder of any Security.
Section 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee, and any such
Securities surrendered to the Trustee for any such purpose shall be promptly
canceled by it. The Company or the Guarantor may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder that the Company or the Guarantor may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder that the Company has not issued and sold, and
all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of by
the Trustee in accordance with its customary practices and the Trustee shall
deliver to the Company a certificate of such disposition.
Section 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
partial period shall be computed on the basis of a 360-day year of twelve 30-day
months and the actual number of days elapsed in any partial month in such
period, and interest on the Securities of each series for a full period shall be
computed by dividing the rate per annum by the number of interest periods that
together constitute a full twelve months.
Section 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect
to the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each such period, an "Extension Period"), during which Extension
Periods the Company shall have the right to make no payments or partial payments
of interest on any Interest Payment Date. No Extension Period shall end on a
date other than an Interest Payment Date. At the end of any such Extension
Period, the Company shall pay all interest then accrued and unpaid on the
Securities together with any Additional Interest thereon at the rate specified
for the Securities of such series to the extent permitted by applicable law;
provided, that no Extension Period shall extend beyond the Stated Maturity of
the principal of the Securities of such series; and provided, further, that
during any such Extension Period, the Company shall not (i) declare or pay any
dividends or distributions
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on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock or (ii) make any payment of principal of or
any interest or premium on or repay, repurchase or redeem any debt securities of
the Company that rank pari passu in all respects with or junior in interest to
the Securities of such series (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of an exchange or conversion of any class or series of the
Company's capital stock (or any capital stock of a Subsidiary of the Company)
for any class or series of the Company's capital stock or of any class or series
of the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration of a
dividend in connection with any Rights Plan, the issuance of rights, stock or
other property under any Rights Plan or the redemption or repurchase of rights
pursuant thereto or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock). Prior
to the termination of any such Extension Period, the Company may further defer
the payment of interest, provided, that no Extension Period shall exceed the
period or periods specified in such Securities, extend beyond the Stated
Maturity of the principal of such Securities or end on a date other than an
Interest Payment Date. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due on any Interest Payment Date, the Company may elect to begin a new
Extension Period, subject to the above conditions. No interest or Additional
Interest shall be due and payable during an Extension Period, except at the end
thereof, but each installment of interest that would otherwise have been due and
payable during such Extension Period shall bear Additional Interest as and to
the extent as may be specified as contemplated by Section 3.1. The Company shall
give the Holders of the Securities of such series and the Trustee written notice
of its election to begin any such Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on
Securities of such series would be payable but for such deferral or, with
respect to any Securities of a series initially issued to a Trust, so long as
any such Securities are held by such Trust, at least one Business Day prior to
the earlier of (i) the next succeeding date on which Distributions on the
Preferred Securities of such Trust would be payable but for such deferral and
(ii) the date on which the Property Trustee of such Trust is required to give
notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Preferred Securities of the record date or
the date such Distributions are payable.
Section 3.13. Right of Set-Off.
With respect to the Securities of a series initially issued to a Trust,
notwithstanding anything to the contrary herein, each of the Company and the
Guarantor shall have the right to set off any payment it is otherwise required
to make in respect of any such Security to the extent the Company or the
Guarantor has theretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee Agreements relating to such Security or to
a holder of Preferred Securities pursuant to an action undertaken under Section
5.8 of this Indenture.
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Section 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company, the
Guarantor, if applicable, and, by its acceptance or acquisition of a Security or
a beneficial interest therein, the Holder of, and any Person that acquires a
direct or indirect beneficial interest in, such Security, intend and agree to
treat such Security as indebtedness of the Company for United States Federal,
state and local tax purposes and, with respect to Securities of a series
initially issued to a Trust, to treat Preferred Securities of such Trust
(including but not limited to all payments and proceeds with respect to such
Preferred Securities) as an undivided beneficial ownership interest in the
Securities (and payments and proceeds therefrom, respectively) for United States
Federal, state and local tax purposes. The provisions of this Indenture shall be
interpreted to further this intention and agreement of the parties.
Section 3.15. Shortening and Extending Stated Maturity.
(a) If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of any series, the Company shall have the right to
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series. In the event that the Company
elects to shorten the Stated Maturity of the Securities of such series, it shall
give written notice to the Trustee.
(b) If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of any series, the Company shall have the right to
extend the Stated Maturity of the principal of the Securities of such series at
any time. In the event that the Company elects to extend the Stated Maturity of
the Securities of such series, it shall give written notice to the Trustee.
Section 3.16. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption and other similar or related materials as a convenience to
Holders; provided, that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other materials
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
ARTICLE IV
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture.
Upon a Company Request by the Company or a Guarantor Request by the
Guarantor, this Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for, and as otherwise provided in this Section) and the
Trustee, on the
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demand of and at the expense of the Company or the Guarantor, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) either
(i) all Securities theretofore authenticated and delivered (other
than (A) Securities that have been mutilated, destroyed, lost or stolen
and that have been replaced or paid as provided in Section 3.7 and (B)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company or the Guarantor
and thereafter repaid to the Company or the Guarantor or discharged
from such trust as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee
for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit,
or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company or
the Guarantor,
and the Company or the Guarantor, in the case of paragraph (ii)(A), (B)
or (C) above, has deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose (x) an amount in the currency
or currencies in which the Securities of such series are payable, (y)
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an amount
or (z) a combination thereof, in each case where any Government
Obligations are deposited, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal, any premium
and interest (including any Additional Interest) thereon and any
Additional Amounts in respect thereof to the date of such deposit (in
the case of Securities that have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(b) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company and the Guarantor; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel or the Guarantor has delivered to the Trustee a
Guarantor's Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 6.7,
the obligations of the Company and the Guarantor to any Authenticating Agent
under Section 6.14 and, if money shall have been deposited with the Trustee
pursuant to paragraph (a)(ii) of this Section, the obligations of the Trustee
under Section 4.2 and Section 10.3(e) shall survive.
The Company and the Guarantor, jointly and severally, agree to pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to this Section
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.
Section 4.2. Application of Trust Money.
Subject to the provisions of Section 10.3(e), all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent or the Guarantor acting as Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest (including any Additional Interest) for the payment of which such money
and Government Obligations (including the proceeds thereof) have been deposited
with or received by the Trustee. Moneys held by the Trustee under this Section
shall not be subject to the claims of holders of Company Senior Debt under
Article XIV or Guarantor Senior Debt under Article XVI.
ARTICLE V
Remedies
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body) except as may be specified pursuant to Section 3.1:
(a) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, or any Additional
Amounts payable with respect thereto, when such interest becomes, or such
Additional Amounts become, due and payable, and continuance of such default for
a period of 30 days (subject to the deferral of any due date in the case of an
Extension Period); or
(b) default in the payment of the principal of or any premium on any
Security of that series at its Maturity, or any Additional Amounts payable with
respect thereto, when such principal or premium becomes, or such Additional
Amounts become, due and payable at their Maturity; or
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(c) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of such series; or
(d) default in the performance, or breach, of any covenant or warranty
of the Company or the Guarantor (if a Guarantee is in effect with respect to
Securities of that series) in this Indenture (other than a covenant or warranty
a default in whose performance or whose breach is specifically dealt with
elsewhere in this Section or that has expressly been included in this Indenture
solely for the benefit of series of Securities other than such series), and
continuance of such default or breach for a period of 30 days after there has
been given, by registered or certified mail, to the Company and the Guarantor
(if a Guarantee is in effect with respect to Securities of that series) by the
Trustee or to the Company, the Guarantor (if a Guarantee is in effect with
respect to Securities of that series) and the Trustee by the Holders of at least
25% in principal amount of the Outstanding 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, unless the Trustee,
or the Trustee and the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities that gave such notice,
as the case may be, shall agree in writing to an extension of such period prior
to its expiration; or
(e) a default under any (i) indebtedness for any money borrowed by the
Company or the Guarantor (if a Guarantee is in effect with respect to Securities
of that series) (including a default with respect to Securities of any series
other than that series), (ii) mortgage, indenture or other instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or the Guarantor (if a Guarantee
is in effect with respect to Securities of that series), or (iii) guarantee by
the Company or the Guarantor (if a Guarantee is in effect with respect to
Securities of that series) of payment for money borrowed, which default shall
consist of a payment default at the stated maturity thereof, after giving effect
to any applicable grace period, or shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness or accelerated
indebtedness having been discharged, or such acceleration having been rescinded
or annulled, within a period of 10 days after there shall have been given, by
registered or certified mail, to the Company and the Guarantor (if a Guarantee
is in effect with respect to Securities of that series) by the Trustee or to the
Company, the Guarantor (if a Guarantee is in effect with respect to Securities
of that series) and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice specifying
such default and requiring the Company or the Guarantor, as the case may be, (if
a Guarantee is in effect with respect to Securities of that series) to cause
such indebtedness or accelerated indebtedness to be discharged or cause such
acceleration to be rescinded or annulled, as the case may be, and stating that
such notice is a "Notice of Default" hereunder; provided, that a default shall
exist under this subsection only if the aggregate principal amount outstanding
under all such indebtedness that is so in default or has become due prior to the
date on which it would otherwise become due and payable exceeds $40,000,000; or
(f) the Company or the Guarantor (if a Guarantee is in effect with
respect to Securities of that series) shall fail within 60 days to pay, bond or
otherwise discharge any uninsured judgment or court order for the payment of
money in excess of $40,000,000, which is not stayed on appeal or is not
otherwise being appropriately contested in good faith; or
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(g) the entry by a court having jurisdiction in the premises of a
decree or order adjudging the Company or the Guarantor (if a Guarantee is in
effect with respect to Securities of that series) a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor (if a
Guarantee is in effect with respect to Securities of that series) under any
applicable Federal, State or foreign bankruptcy, insolvency, reorganization or
other similar law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or the Guarantor
(if a Guarantee is in effect with respect to Securities of that series) or of
any substantial part of the Company's or the Guarantor's (if a Guarantee is in
effect with respect to Securities of that series) property, or ordering the
winding up or liquidation of the Company's or the Guarantor's (if a Guarantee is
in effect with respect to Securities of that series) affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or
(h) the filing by the Company or the Guarantor (if a Guarantee is in
effect with respect to Securities of that series) of a petition or answer or
consent seeking reorganization or relief under any applicable Federal, State or
foreign bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or the Guarantor (if a Guarantee is in
effect with respect to Securities of that series) or of any substantial part of
the Company's or the Guarantor's (if a Guarantee is in effect with respect to
Securities of that series) property, or the making by the Company or the
Guarantor (if a Guarantee is in effect with respect to Securities of that
series) of an assignment for the benefit of creditors, or the admission by it in
writing of the Company's or the Guarantor's (if a Guarantee is in effect with
respect to Securities of that series) inability to pay its debts generally as
they become due, or the authorization of any such action by the Board of
Directors; or
(i) any Guarantee with respect to the Securities of any series ceases
to be in full force and effect or the Guarantor denies in writing that it has
liability under the Guarantee with respect to the Securities of such series
(other than by reason of the termination of this Indenture); or
(j) any other Event of Default provided with respect to Securities of
that series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default with respect to Securities of any series at
the time Outstanding (other than an Event of Default specified in Section 5.1(g)
or (h)) occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount of and all unpaid
accrued interest (including any Additional Interest) and premium on all of the
Securities of that series (or, if the Securities of that series are Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms of that series) to be due and payable immediately, by a
notice in writing to the Company and the Guarantor (if a Guarantee is in effect
with respect to Securities of that series) (and to the Trustee if given by
Holders), provided, that in the case of the Securities of a series initially
issued to a Trust, if, upon an Event of Default, the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of such
series fail to declare the principal of all the Outstanding Securities of such
series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount (as defined in the related Trust
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Agreement) of the related series of Preferred Securities issued by such Trust
then outstanding shall have the right to make such declaration by a notice in
writing to the Property Trustee, the Company, the Guarantor (if a Guarantee is
in effect with respect to Securities of that series) and the Trustee; and upon
any such declaration such principal amount (or specified portion thereof) and
accrued interest (including any Additional Interest) and premium on all the
Securities of such series shall become immediately due and payable; provided,
that the payment of principal and interest and all other amounts due with
respect to such Securities shall remain subordinated to the extent provided in
Articles XIV and XV.
If an Event of Default specified in Section 5.1(g) or (h) occurs, all
unpaid principal of, accrued interest (including any Additional Interest) and
premium on and Additional Amounts with respect to the Outstanding Securities of
that series (or such lesser amount as may be provided for in the Securities of
such series) shall automatically become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder of
any Security of that series.
(b) At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Property Trustee
(in the case of the Securities of a series initially issued to a Trust), the
Company, the Guarantor (if a Guarantee is in effect with respect to Securities
of that series) and the Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Company or the Guarantor (if a Guarantee is in effect
with respect to Securities of that series) has paid or deposited with
the Trustee a sum sufficient to pay:
(A) all overdue installments of interest (including
Additional Interest) on all Securities of such series and any
Additional Amounts with respect thereto,
(B) the principal of and any premium on any
Securities of such series that have become due otherwise than
by such declaration of acceleration and any Additional Amounts
with respect thereto and any interest thereon at the rate
prescribed therefor in such Securities,
(C) all overdue sinking fund payments with respect to
Securities of such series and interest thereon at the rate
prescribed therefor in such Securities,
(D) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest
(including any Additional Interest) and Additional Amounts at
the rate prescribed therefor in such Securities, and
(E) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
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(ii) all Events of Default with respect to Securities of that
series, other than the non- payment of the principal of Securities of
that series that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.13.
(c) In the case of Securities of a series initially issued to a Trust,
if the Holders of such Securities fail to annul such declaration and waive such
default, the holders of not less than a majority in aggregate Liquidation Amount
(as defined in the related Trust Agreement) of the related series of Preferred
Securities issued by such Trust then outstanding shall also have the right to
rescind and annul such declaration and its consequences by written notice to the
Property Trustee, the Company, the Guarantor (if a Guarantee is in effect with
respect to Securities of that series) and the Trustee, subject to the
satisfaction of the conditions set forth in paragraph (b) of this Section 5.2.
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.
(a) The Company and the Guarantor (if a Guarantee is in effect with
respect to the Securities of that series) each covenant that if:
(i) default is made in the payment of any installment of
interest (including any Additional Interest) on or any Additional
Amounts, payable with respect to such interest, with respect to any
Security of any series when such interest or Additional Amounts become
due and payable and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or
any premium on any Security or any Additional Amounts with respect
thereto at the Maturity thereof, or
(iii) default is made in the deposit of any sinking fund
payment, when and as due by the terms of a Security of any series,
the Company or the Guarantor, as the case may be, will, upon demand of the
Trustee, pay to the Trustee, for the benefit of the Holders of such Securities,
the whole amount then due and payable on such Securities for principal and any
premium and interest (including any Additional Interest) and any Additional
Amounts, and, to the extent that such interest shall be legally enforceable,
interest on any overdue principal, premium and interest (including Additional
Interest) at the rate prescribed therefor in such Securities, and in addition
thereto, all amounts owing to the Trustee, its agents and counsel under Section
6.7.
(b) If the Company or the Guarantor, as the case may be, fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or the
Guarantor or any other obligor upon such Security and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or the Guarantor or any other obligor upon the Security,
wherever situated.
(c) If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of
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such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, the
Guarantor or any other obligor upon the Securities, their respective property or
their respective creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay any amounts due the
Trustee, its agents and counsel under Section 6.7.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, subject to
Article XIV and after provision for the payment of all the amounts owing the
Trustee, its agents and counsel under Section 6.7, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal or any
premium or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee, its agents and
counsel under Section 6.7;
SECOND: Subject to Articles XIV and XV, to the payment of the amounts
then due and unpaid for principal and any premium and interest (including any
Additional Interest) on the Securities in respect of
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which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and any premium and interest (including
any Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Security of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture or for the appointment of a receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding for 60 days; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium, Interest and Additional Tax Sums; Direct Action by Holders of Preferred
Securities.
Notwithstanding any other provision in this Indenture, the Holder of
any Security of any series shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.8 and 3.12) interest (including any Additional Interest) on and
any Additional Tax Sums with respect to such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit against the Company or the Guarantor for
the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder. In the case of Securities of a series
initially issued to a Trust, any registered holder of the series of Preferred
Securities issued by such Trust shall
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have the right, upon the occurrence of an Event of Default described in Section
5.1(a) or (b), to institute a suit directly against the Company for enforcement
of payment to such holder of principal of and any premium and (subject to
Sections 3.8 and 3.12) interest (including any Additional Interest) on the
Securities having a principal amount equal to the aggregate Liquidation Amount
(as defined in the related Trust Agreement) of such Preferred Securities held by
such holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities issued
by any Trust has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee, such Holder or such
holder of Preferred Securities, then and in every such case the Company, the
Guarantor, the Trustee, such Holders and such holder of Preferred 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 the Trustee, such Holder and such holder of Preferred Securities
shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in Section 3.7(f), no right or remedy
herein conferred upon or reserved to the Trustee or the Holders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Securities or
any holder of any Preferred Security to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders and the
right and remedy given to the holders of Preferred Securities by Section 5.8 may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee, the Holders or the holders of Preferred Securities, as the case may be.
Section 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided, that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
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(b) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow any such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, determine that the proceeding so
directed would be unjustly prejudicial to the Holders not joining in any such
direction or would involve the Trustee in personal liability.
Section 5.13. Waiver of Past Defaults.
(a) The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series affected thereby and, in the
case of any Securities of a series initially issued to a Trust, the holders of a
majority in aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the Preferred Securities issued by such Trust may waive any past
Event of Default hereunder with respect to such series and its consequences,
except an Event of Default:
(i) in the payment of the principal of, any premium or
interest (including any Additional Interest) on or any Additional
Amounts with respect to any Security of such series (unless such Event
of Default has been cured and the Company or the Guarantor, if
applicable, has paid to or deposited with the Trustee a sum sufficient
to pay all matured installments of interest (including any Additional
Interest) and all principal of, any premium on and all Additional
Amounts with respect to, all Securities of that series due otherwise
than by acceleration), or
(ii) in respect of a covenant or provision hereof that under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
(b) Any such waiver shall be deemed to be on behalf of the Holders of
all the Securities of such series or, in the case of a waiver by holders of
Preferred Securities issued by such Trust, by all holders of Preferred
Securities issued by such Trust.
(c) Upon any such waiver, such Event of Default shall cease to exist
and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his or her acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, omitted or suffered by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company or the Guarantor, any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of
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the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of, any premium or
interest (including any Additional Interest) on or any Additional Amounts with
respect to any Security on or after the Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
Section 5.15. Waiver of Usury, Stay or Extension Laws.
The Company and the Guarantor each (to the extent that it may lawfully
do so) covenant 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 usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
the Guarantor each (to the extent that it may lawfully do so) hereby expressly
waive all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE VI
The Trustee
Section 6.1. Certain Duties and Responsibilities.
The rights, immunities, duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing,
no provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reason able grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default actually known to the Trustee within 90 days after it occurs unless such
default shall have been cured or waived; provided, that except in the case of a
default in the payment of the principal of or any premium or interest (including
any Additional Interest) on any Securities of any series or in the making of any
sinking fund payment payable with respect to Securities of any series, the
Trustee may withhold the notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that withholding the notice is
in the interest of Holders of Securities of that series; and provided, further,
that in the case of any default of the character specified in Section 5.1(d)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 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
Securities of such series.
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Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting in good faith upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor shall be
sufficiently evidenced by a Company Request or Company Order or by a Guarantor
Request or a Guarantor Order, as the case may be, and any resolution of the
Board of Directors or of the Guarantor's Board of Directors shall be
sufficiently evidenced by a Board Resolution or by a Guarantor Board Resolution,
as the case may be;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate or, if such matter pertains to the Guarantor,
a Guarantor's Officers' Certificate;
(d) the 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) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, security or other paper or document, but the Trustee in its discretion may
make such inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company, and
the Guarantor, if applicable, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Indenture;
(i) no permissive power or authority available to the Trustee shall be
construed to be a duty; and
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(j) the Trustee shall not be charged with knowledge of any Event of
Default unless either (i) a Responsible Officer of the Trustee assigned to its
Corporate Trust Office shall have actual knowledge thereof or (ii) the Trustee
shall have received notice thereof from the Company or a Holder;
(k) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent, Calculation Agent or Transfer Agent and Securities
Registrar hereunder, the rights and protections afforded to the Trustee pursuant
to this Article shall also be afforded such Paying Agent, Authenticating Agent,
Calculation Agent or Transfer Agent and Securities Registrar.
Section 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Guarantor, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture, or the
Guarantee or of the Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of the Securities
or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company or the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds, except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder, except as
otherwise agreed with the Company or the Guarantor.
Section 6.7. Compensation and Reimbursement.
(a) The Company and the Guarantor, jointly and severally, agree:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts
as the Company and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(ii) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents and
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counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee and its officers, directors,
agents and employees for, and to hold them harmless against, any loss,
liability, damage, claim or expense (including the reasonable
compensation, expenses and disbursements of its counsel and agents)
incurred without negligence or bad faith, arising out of or in
connection with the acceptance or administration of this trust or the
performance of the Trustee's duties hereunder, 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.
(b) The Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by it hereunder for any amount owing it or
any predecessor Trustee pursuant to this Section, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
(c) Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services after
an Event of Default specified in Section 5.1(g) or 5.1(h) occurs, the expenses
(including the reasonable charges and expenses of its agents and counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal, State or foreign bankruptcy,
insolvency or other similar law.
(d) The obligations of the Company under this Section shall survive the
satisfaction and discharge of this Indenture, the defeasance of the Securities
and the earlier resignation or removal of the Trustee.
Section 6.8. Conflicting Interests.
(a) If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or under any other indenture with respect to
securities issued by the Company or issued or guaranteed by the Guarantor.
(b) The Trust Agreement and the Guarantee Agreements with respect to
each Trust shall be deemed to be specifically described in this Indenture for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be the Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually pursuant to law or to the requirements of
its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall
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be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee with respect to the
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. Neither the Company nor any
Person directly or indirectly controlling, controlled by or under common control
with the Company shall serve as Trustee for the Securities of any series issued
hereunder.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(ii) the 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
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company, by a Board Resolution, may remove the
Trustee with respect to the Securities of all series issued hereunder or (y)
subject to Section 5.14, any such Holder may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to the Securities of all series issued
hereunder and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by
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a Board Resolution, shall promptly appoint a successor Trustee with respect to
the Securities of that or those series. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding 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, become the successor Trustee with respect to the
Securities of such series and supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may,
subject to Section 5.14, on behalf of such Holder and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective 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 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.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor (if a Guarantee is in effect with respect to any Securities), the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (ii)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(iii) 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
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other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall, upon payment of its charges, duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company or the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all rights, powers and
trusts referred to in paragraph (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 shall be qualified and eligible
under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
Section 6.13. Preferential Collection of Claims Against Company or
Guarantor.
If and when the Trustee shall be or become a creditor of the Company or
the Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company or the Guarantor (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent.
(a) The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities, which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue (in accordance with procedures acceptable to the Trustee) and
upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.7, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication
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and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, or of any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall 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.
(b) Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent eligible under the provisions of this Section, which shall be acceptable
to the Company, and shall give notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve. 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.
(d) The Company and the Guarantor, jointly and severally, agree to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section.
(e) If an appointment of an Authenticating Agent with respect to one or
more series is made pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
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This is one of the Securities of the series designated therein referred
to in the within mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
As Trustee
By: ________________________________,
As Authenticating Agent
By:_________________________________
Authorized Officer
ARTICLE VII
Holder's Lists and Reports by Trustee AND Company
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) 15 days after each Regular Record Date, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Securities of each series as of such Regular Record
Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
in each case to the extent such information is in the possession or control of
the Company and has not otherwise been received by the Trustee in its capacity
as Securities Registrar.
Section 7.2. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company, the Trustee or
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 7.3. Reports by Trustee.
(a) If required by Section 3.13(a) of the Trust Indenture Act, the
Trustee shall, within 60 days after each September 15 following the date of this
Indenture, deliver to the Holders a brief report, dated as of such September 15,
which complies with the provisions of Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall transmit to Holders such other reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each securities exchange or system upon
which any Securities are listed or traded, with the Commission and with the
Company. The Company shall notify the Trustee when any Securities are listed or
traded on any securities exchange or system.
Section 7.4. Reports by Company.
(a) The Company shall furnish to the Holders and to prospective
purchasers of Securities that are not registered under the Securities Act, upon
their request, the information required to be furnished pursuant to Rule
144A(d)(4) under the Securities Act.
(b) The Company and the Guarantor, if applicable, shall file with the
Trustee and with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in
the Trust Indenture Act; provided, that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act shall be filed with the Trustee within 15 days after the
same is required to be filed with the Commission.
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ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(a) if the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance or transfer, or
that leases, the properties and assets of the Company substantially as an
entirety shall be a corporation existing under the laws of the United States of
America, any State thereof or, the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest (including any
Additional Interest) on all the Securities of every series and the performance
or observance of every covenant of this Indenture and the Securities on the part
of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have occurred and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, any such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with; and the Trustee may rely upon such
Officers' Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section.
Section 8.2. Successor Company Substituted.
(a) Upon any consolidation of the Company with, or merger of the
Company into, any other Person, or any conveyance, transfer or lease by the
Company of its properties and assets substantially as an entirety to any Person
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,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
and thereafter, except in the case of a lease, the Company shall be discharged
from all obligations and covenants under this Indenture and the Securities.
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(b) Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder that theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities that previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture.
(c) In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Securities
thereafter to be issued as may be appropriate.
Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms.
The Guarantor shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Guarantor or convey, transfer or lease its properties and assets substantially
as an entirety to the Guarantor, unless:
(a) if the Guarantor shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Guarantor is merged or the Person that acquires by conveyance or transfer,
or that leases, the properties and assets of the Guarantor substantially as an
entirety shall be a corporation existing under the laws of the United States of
America, any State thereof, the District of Columbia or Bermuda and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the Guarantee with respect to each Guaranteed Security and
the performance or observance of every covenant of this Indenture on the part of
the Guarantor to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have occurred and be continuing; and
(c) the Guarantor has delivered to the Trustee a Guarantor's Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, any such supplemental indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with; and the Trustee may rely
upon such Guarantor's Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section.
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Section 8.4. Successor Guarantor Substituted.
(a) Upon any consolidation of the Guarantor with, or merger of the
Guarantor into, any other Person, or any conveyance, transfer or lease by the
Guarantor of its properties and assets substantially as an entirety to any
Person in accordance with Section 8.3, the successor Person formed by such
consolidation or into which the Guarantor is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this Indenture with the
same effect as if such successor Person had been named as the Guarantor; and
thereafter, except in the case of a lease, the Guarantor shall be discharged
from all obligations and covenants under this Indenture, the Guarantee and the
Securities.
(b) Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Guarantor, any or all of the
Guarantees issuable hereunder that theretofore shall not have been signed by the
Guarantor and delivered to the Trustee; and, upon the order of such successor
Person instead of the Guarantor and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall deliver any
Guarantees that previously shall have been signed and delivered by the officers
of the Guarantor to the Trustee pursuant to such provisions and any Guarantees
that such successor Person thereafter shall cause to be executed and delivered
to the Trustee on its behalf for the purpose pursuant to such provisions. All
the Guarantees so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Guarantees theretofore or thereafter issued
in accordance with the terms of this Indenture.
(c) In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Securities and
Guarantees thereafter to be issued as may be appropriate.
ARTICLE IX
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, the Guarantor (if the Securities established or affected by
such supplemental indenture are Guaranteed Securities), when authorized by a
Guarantor Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(a) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 or 3.1 or to establish the form of a
Guarantee with respect to the Securities of any series as permitted by
Section 2.5; or
(b) to evidence the succession of another Person to the
Company or the Guarantor, if applicable and the assumption by any such
successor of the covenants of the Company or the Guarantor, if
applicable, herein and in the Securities or the Guarantee; or
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(c) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company or the Guarantor; or
(d) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(e) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided, that any such addition, change or elimination shall (i)
become effective only when there is no Outstanding Security of any
series created prior to the execution of such supplemental indenture
that is entitled to the benefit of such provision or (ii) shall not
apply to any Outstanding Securities; or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the 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
(g) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided, that such
action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect or, in the case of the
Securities of a series initially issued to a Trust and for so long as
any of the corresponding series of Preferred Securities issued by such
Trust shall remain outstanding, the holders of such Preferred
Securities; or
(h) to comply with the requirements of the Commission in order
to effect or maintain qualification of this Indenture under the Trust
Indenture Act.
Section 9.2. Supplemental Indentures With Consent of Holders.
(a) With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of such Holders delivered to the Company,
the Guarantor (if such affected Securities are Guaranteed Securities) and the
Trustee, the Company, by a Board Resolution, the Guarantor, by a Guarantor Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security of each series
affected thereby,
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(i) change the Stated Maturity of the principal of, any
premium or any installment of interest (including any Additional
Interest) on or any Additional Amounts with respect to any Security, or
reduce the principal amount of any Security or the rate of interest
thereon or any Additional Amounts with respect to or any premium
payable upon the redemption thereof or otherwise, or reduce the
principal amount of a Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, modify the calculation of the rate of interest on any Security or
change the date on which any Security may be redeemed or change the
Place of Payment where, or the coin or currency in which, any Guarantee
or any Security or any premium or interest thereon or any Additional
Amount with respect thereto is payable, or impair the right to
institute suit for the enforcement of any payment on or with respect to
any Securities on or after the Stated Maturity thereof or, in the case
of redemption, on or after the Redemption Date, or
(ii) reduce the percentage in aggregate principal amount of
the Outstanding Securities of any series, the consent of whose Holders
is required to enter into any such supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance with
any provisions of this Indenture or any default hereunder and their
consequences provided for in this Indenture, or
(iii) modify any of the provisions of this Section, Section
5.13 or Section 10.9, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 10.9, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and
9.1(f), or
(iv) modify any of the provisions of this Indenture relating
to the subordination of the Securities or the Guarantee, if applicable,
in a manner that would adversely affect the interests of any Holder of
Securities of that series, or
(v) if the Securities are Guaranteed Securities, reduce any
amount payable under, delay or defer the required time of payment
under, or impair the right to institute suit to enforce any payment
under the Guarantee, or
(vi) modify the terms of the Guarantee contained in Article XV
in any manner adverse to the Holders.
provided, that, in the case of the Securities of a series initially issued to a
Trust, so long as any of the corresponding series of Preferred Securities issued
by such Trust remains outstanding, (x) no such amendment shall be made that
adversely affects the holders of such Preferred Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount (as defined in the related Trust Agreement) of
such Preferred Securities then outstanding unless and until the principal of and
any premium on the Securities of such series and all accrued and (subject to
Section 3.12) unpaid interest (including any Additional Interest) thereon and
all
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Additional Amounts with respect thereto have been paid in full and (y) no
amendment shall be made to Section 5.8 of this Indenture that would impair the
rights of the holders of Preferred Securities issued by any Trust provided
therein without the prior consent of the holders of each such Preferred Security
then outstanding unless and until the principal of and any premium on the
Securities of such series and all accrued and (subject to Section 3.12) unpaid
interest (including any Additional Interest) thereon have been paid in full.
(b) A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities or any corresponding
series of Preferred Securities of a Trust that holds the Securities of any
series, or that modifies the rights of the Holders of Securities of such series
or holders of such Preferred Securities of such corresponding series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series or
holders of Preferred Securities of any other such corresponding series.
(c) 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 shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Trustee's own rights, duties,
responsibilities 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 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.
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Section 9.6. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series with, if applicable, a
Guarantee endorsed thereon duly executed by the Guarantor.
ARTICLE X
Covenants
Section 10.1. Payment of Principal, Premium and Interest
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest (including any Additional Interest) on the Securities of that
series in accordance with the terms of such Securities and this Indenture.
Section 10.2. Maintenance of Office or Agency.
(a) The Company and the Guarantor will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of
that series and the related Guarantee may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company or the
Guarantor in respect of the Securities of that series, the related Guarantee and
this Indenture may be served. The Company and the Guarantor initially appoint
the Trustee, acting through its Corporate Trust Office, as its agent for such
purposes. The Company or the Guarantor will give prompt written notice to the
Trustee of any change in the location of any such office or agency. If at any
time the Company or the Guarantor shall fail to maintain such office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company and the Guarantor hereby
appoint the Trustee as their agent to receive all such presentations,
surrenders, notices and demands.
(b) The Company or the Guarantor may also from time to time designate
one or more other offices or agencies where the Securities of one or more series
and the related Guarantee may be presented or surrendered for any or all of such
purposes, and may from time to time rescind such designations; provided, that no
such designation or rescission shall in any manner relieve the Company or the
Guarantor of their obligations to maintain an office or agency in each Place of
Payment for Securities of any series and the related Guarantee for such
purposes. The Company or the Guarantor will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such office or agency.
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Section 10.3. Money for Security Payments to be Held in Trust.
(a) If the Company shall at any time act as its own Paying Agent or if
the Guarantor shall act as Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of and premium
or interest (including any Additional Interest) on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest
(including any Additional Interest) so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee in writing of its failure so to act. If the
Guarantor shall at any time act as its own Paying Agent with respect to the
Guarantee, it will, on or before each date on which amounts payable under the
Guarantee are due and payable, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay all amounts then due and
payable under the Guarantee until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
in writing of its action or failure so to act
(b) Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to 10:00 a.m., New York City time, on each
due date of the principal of or any premium or interest (including any
Additional Interest) on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided in
the Trust Indenture Act and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee in writing of its action or failure so
to act. Whenever the Guarantor shall have one or more Paying Agents for the
Guarantee of any Guaranteed Security, it will, prior to 10:00 a.m., New York
City time, on each date that amounts are due under such Guarantee, deposit with
a Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided in the Trust Indenture Act and (unless such Paying Agent is the
Trustee) the Guarantor will promptly notify the Trustee in writing of its action
or failure to so act.
(c) The Company will cause each Paying Agent for any series of
Securities other than the Trustee or the Guarantor and the Guarantor will cause
each Paying Agent for the Guarantee other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will (i) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent and (ii) during the continuance of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
(d) The Company or the Guarantor 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 or Guarantor Order, as the case may be, direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company,
the Guarantor or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company, the
Guarantor or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
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(e) Any money deposited with the Trustee or any Paying Agent, or then
held by the Company or the Guarantor in trust for the payment of the principal
of and any premium or interest (including any Additional Interest) on any
Security and remaining unclaimed for two years after such principal and any
premium or interest has become due and payable shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or unclaimed property
law) be paid on Company Request to the Company (or, if deposited by the
Guarantor, paid on Guarantor Request to the Guarantor), or (if then held by the
Company or the Guarantor) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company and the Guarantor, if
applicable, for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company or the Guarantor, if applicable, cause to be published
once, in a newspaper published in the English language, customarily published 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 publication, any unclaimed balance of such money then remaining will be
repaid to the Company or the Guarantor, if applicable.
Section 10.4. Statement by Officers as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate (one of the signatories to which shall be the principal financial
officer, principal executive officer or principal accounting officer of the
Company) covering the preceding fiscal year, stating whether or not to the
knowledge of the signers thereof the Company is in default in the performance or
observance with any of the terms, provisions, covenants and conditions of this
Indenture (without regard to any grace period or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
Section 10.5. Statement by Guarantor's Officers as to Compliance.
The Guarantor shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Guarantor ending after the date hereof, a
Guarantor's Officers' Certificate (one of the signatories to which shall be the
principal financial officer, principal executive officer or principal accounting
officer of the Guarantor) covering the preceding fiscal year, stating whether or
not to the knowledge of the signers thereof the Guarantor is in default in the
performance or observance with any of the terms, provisions, covenants and
conditions of this Indenture (without regard to any grace period or requirement
of notice provided hereunder) and, if the Guarantor shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
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Section 10.6. Original Issue Discount.
For each year during which any Discount Securities are Outstanding, the
Company shall furnish to each Paying Agent in a timely fashion such information
as may be reasonably requested by each Paying Agent in order that each Paying
Agent may prepare the information which it is required to report for such year
on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Internal Revenue Code of 1986, as amended. Such information shall include the
amount of original issue discount includible in income for each $25 of principal
amount at Stated Maturity of outstanding Securities during such year.
Section 10.7. Additional Tax Sums.
In the case of the Securities of a series initially issued to a Trust,
so long as no Event of Default has occurred and is continuing and except as
otherwise specified as contemplated by Section 2.1 or Section 3.1, if (a) a
Trust is the Holder of all of the Outstanding Securities of such series and (b)
a Tax Event described in clause (i) or (iii) in the definition of Tax Event in
Section 1.1 has occurred and is continuing in respect of such Trust, the Company
shall pay to such Trust (and its permitted successors or assigns under the
related Trust Agreement) for so long as such Trust (or its permitted successor
or assignee) is the registered holder of the Outstanding Securities of such
series, such additional amounts as may be necessary in order that the amount of
Distributions then due and payable by such Trust on the related Preferred
Securities and Common Securities that at any time remain outstanding in
accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event (the "Additional Tax Sums").
Whenever in this Indenture or the Securities there is a reference in any context
to the payment of principal of or interest on the Securities, such mention shall
be deemed to include mention of the payments of the Additional Tax Sums provided
for in this Section to the extent that, in such context, Additional Tax Sums
are, were or would be payable in respect thereof pursuant to the provisions of
this Section and express mention of the payment of Additional Tax Sums (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Tax Sums in those provisions hereof where such express mention is not
made; provided, that the deferral of the payment of interest pursuant to Section
3.12 on the Securities shall not defer the payment of any Additional Tax Sums
that may be due and payable.
Section 10.8. Additional Covenants.
(a) The Company covenants and agrees with each Holder of Securities of
each series that it shall not (i) declare or pay any dividends or distributions
on, or redeem purchase, acquire or make a liquidation payment with respect to,
any shares of the capital stock of the Company or (ii) make any payment of
principal of or any interest or premium on or repay, repurchase or redeem any
debt securities of the Company that rank pari passu in all respects with or
junior in interest to the Securities of such series (other than (A) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (B) as a result of an exchange or conversion
of any class or series of the capital stock of the Company (or any capital stock
of a Subsidiary of the Company), for any class or series of the capital stock of
the Company or of any class or series of the indebtedness of the Company for any
class
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or series of the capital stock of the Company, (C) the purchase of fractional
interests in shares of the capital stock of the Company pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (D) any declaration of a dividend in connection with any
Rights Plan, the issuance of rights, stock or other property under any Rights
Plan or the redemption or repurchase of rights pursuant thereto or (E) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock), if at such time the Company
shall have given notice of its election to begin an Extension Period with
respect to the Securities of such series as provided herein and shall not have
rescinded such notice, or such Extension Period, or any extension thereof, shall
be continuing.
(b) The Company also covenants with each Holder of Securities of a
series initially issued to a Trust (i) to hold, directly or indirectly, 100% of
the Common Securities of such Trust, provided, that any permitted successor of
the Company hereunder may succeed to the Company's ownership of such Common
Securities, (ii) as holder of such Common Securities, not to voluntarily
terminate, wind-up or liquidate such Trust other than (A) in connection with a
distribution of the Securities of such series to the holders of the related
Preferred Securities in liquidation of such Trust or (B) in connection with
certain mergers, consolidations or amalgamations permitted by the related Trust
Agreement and (iii) to use its reasonable commercial efforts, consistent with
the terms and provisions of such Trust Agreement, to cause such Trust to
continue not to be taxable as a corporation for United States Federal income tax
purposes.
Section 10.9. Waiver of Certain Covenants.
Subject to the rights of holders of Preferred Securities specified in
Section 9.2, if any, and except as otherwise specified as contemplated by
Section 3.1 for Securities of such series, the Company or the Guarantor, if
applicable, may, with respect to the Securities of any series, omit in any
particular instance to comply with any covenant in Section 10.8 or provided
pursuant to Section 3.1 or Section 9.1(a) or (c) for the benefit of the holders
of such series, if before or after the time for such compliance the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such covenant, but no such
waiver shall extend to or affect such covenant except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company or the Guarantor, if applicable, in respect of any such covenant shall
remain in full force and effect.
ARTICLE XI
Redemption Of Securities
Section 11.1. Applicability of Article.
Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for such Securities) in
accordance with this Article.
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Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
3.1 for such Securities. In case of any redemption at the election of the
Company, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing and, in the case of Securities of a series held by
a Trust, the Property Trustee under the related Trust Agreement, of the
Redemption Date and of the principal amount of Securities of the applicable
series to be redeemed; provided, that in the case of any series of Securities
initially issued to a Trust, for so long as such Securities are held by such
Trust, such notice shall be given not less than 45 nor more than 75 days prior
to such Redemption Date (unless a shorter notice shall be satisfactory to the
Property Trustee under the related Trust Agreement). In the case of any
redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company that is subject to a
condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 11.3. Selection of Securities to be Redeemed.
(a) If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided, that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
(b) The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be redeemed.
(c) The provisions of paragraphs (a) and (b) of this Section shall not
apply with respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
Section 11.4. Notice of Redemption.
(a) Notice of redemption shall be given not less than 30 days nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, provided, that in the case of any series of Securities initially
issued to a Trust, for so long as such Securities are held by such Trust, such
notice shall
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be given not less than 45 nor more than 75 days prior to such Redemption Date
(unless a shorter notice shall be satisfactory to the Property Trustee under the
related Trust Agreement).
(b) With respect to Securities of each series to be redeemed, each
notice of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price, as calculated by the Company,
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the day provided by the terms of
such Securities (and if an estimate is provided, a further notice shall
be sent of the actual Redemption Price on the date that such Redemption
Price is calculated);
(iii) if less than all Outstanding Securities of such series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed;
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof, and
that any interest (including any Additional Interest) thereon shall
cease to accrue on and after said date;
(v) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(vi) that the redemption is for a sinking fund, if such is the
case; and
(vii) such other provisions as may be required in respect of
the terms of such Securities.
(c) Unless otherwise specified with respect to any Securities in
accordance with Section 3.1, with respect to any redemption of Securities at the
election of the Company, unless, upon the giving of notice of such redemption,
Defeasance shall have been effected with respect to such Securities pursuant to
Section 13.2, such notice may state that such redemption shall be conditional
upon the receipt by the Trustee or the Paying Agent for such Securities, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of and any premium and interest (including any Additional Interest) on
such Securities and that if such money shall not have been so received such
notice shall be of no force or effect and the Company shall not be required to
redeem such Securities. In the event such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall be given, in the same
manner in which the notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the Trustee or
Paying Agent for the Securities otherwise to have been redeemed shall promptly
return to the Holders thereof any of such Securities that had been surrendered
for payment upon such redemption.
(d) Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company
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and, subject to paragraph (c) of this Section, shall be irrevocable. The notice
if mailed in the manner provided above shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. In any case, a
failure to give such notice by mail or any defect in the notice to the Holder of
any Security designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security.
Section 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on any Redemption Date, the
Company or the Guarantor, if applicable, will deposit with the Trustee or with
one or more Paying Agents (or, if the Company is acting as its own Paying Agent
or if the Guarantor is acting as Paying Agent with respect to such Securities or
if the Guarantor is acting as its own Paying Agent with respect to the related
Guarantee, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and any accrued interest
(including any Additional Interest) on all the Securities (or portions thereof)
that are to be redeemed on that date.
Section 11.6. Payment of Securities Called for Redemption.
(a) Except as provided in Section 11.4(c), after notice of redemption
has been given, the Securities to be redeemed shall become due and payable on
the Redemption Date at the place or places stated in such notice at the
Redemption Price, together with accrued interest (including any Additional
Interest) to the Redemption Date. Upon surrender of such Securities at a Place
of Payment specified in such notice, such Securities shall be paid and redeemed
by the Company at the Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date; provided, that,
unless otherwise specified as contemplated by Section 3.1, installments of
interest (including any Additional Interest) whose Stated Maturity is on or
prior to the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.8.
(b) If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and any premium on such
Security shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 11.7. Securities Redeemed in Part.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or Securities of the same
series, of authorized denominations, in aggregate principal amount equal to the
unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms with, if applicable, a Guarantee endorsed
thereon, duly executed by the Guarantor.
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Section 11.8. Right of Redemption of Securities Initially Issued to a
Trust.
(a) In the case of the Securities of a series initially issued to a Trust,
except as otherwise specified as contemplated by Section 3.1, the Company, at
its option, may redeem such Securities (i) on or after the date specified in
such Security, in whole at any time or in part from time to time, or (ii) upon
the occurrence and during the continuation of a Tax Event or an Investment
Company Event, at any time within 90 days following the occurrence and during
the continuation of such Tax Event or Investment Company Event, in whole (but
not in part), in each case at a Redemption Price specified in such Security,
together with accrued interest (including any Additional Interest) to the
Redemption Date.
(b) If less than all the Securities of any such series are to be redeemed,
the aggregate principal amount of such Securities remaining Outstanding after
giving effect to such redemption shall be sufficient to satisfy any provisions
of the Trust Agreement related to the Trust to which such Securities were
issued, including any requirement in such Trust Agreement as to the minimum
Liquidation Amount (as defined in such Trust Agreement) of Preferred Securities
that may be held by a holder of Preferred Securities thereunder.
ARTICLE XII
Sinking Funds
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities. The minimum amount of any
sinking fund payment provided for by the terms of any Securities of any series
is herein referred to as a "mandatory sinking fund payment", and any sinking
fund payment in excess of such minimum amount that is permitted to be made by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of such
Securities.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company or the Guarantor, if
applicable, may at its option, at any time no more than 16 months and no less
than 60 days prior to the date on which such sinking fund payment is due,
deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired by the Company, except Securities of such series that have
been redeemed through the application of mandatory or optional sinking fund
payments pursuant to the terms of the Securities of such series, accompanied by
a Company Order instructing the Trustee to credit such obligations and stating
that the Securities of such series were originally issued by the Company by way
of bona fide sale or other negotiation for value; provided, that the Securities
to be so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the
Redemption Price for such Securities, as specified in the
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Securities so to be redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund.
(a) Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, that is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and stating the basis for such
credit and that such Securities have not been previously so credited, and will
also deliver to the Trustee any Securities to be so delivered. Such Officers'
Certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the succeeding sinking fund payment date. In the case of the failure
of the Company to deliver such Officers' Certificate (or, as required by this
Indenture, the Securities specified in such Officers' Certificate) by the due
date therefor, the sinking fund payment due on the succeeding sinking fund
payment date for such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Securities of such series
subject to a mandatory sinking fund payment without the right to deliver or
credit securities as provided in Section 12.2 and without the right to make the
optional sinking fund payment with respect to such series at such time.
(b) Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent or
by the Guarantor if the Guarantor is acting as Paying Agent) on the sinking fund
payment date on which such payment is made (or, if such payment is made before a
sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee
(or, if the Company is acting as its own Paying Agent or the Guarantor is acting
as Paying Agent segregated and held in trust by the Company or the Guarantor, as
the case may be, as provided in Section 10.3) for such series and together with
such payment (or such amount so segregated) shall be applied in accordance with
the provisions of this Section 12.3. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or if
the Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 10.3) on the last sinking fund payment date with respect to
Securities of such series and not held for the payment or redemption of
particular Securities of such series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent or by the Guarantor if
the Guarantor is acting as Paying Agent), together with other moneys, if
necessary, to be deposited (or segregated) sufficient for the purpose, to the
payment of the principal of the Securities of such series at Maturity. The
Trustee shall select the 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
or the Guarantor, if applicable, in the manner provided in Section 11.4. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Section 11.6. On or before each
sinking fund payment date, the Company or the Guarantor, if applicable, shall
pay to the Trustee (or, if the Company is acting as its own Paying Agent or if
the Guarantor is acting as Paying Agent, segregate and hold
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in trust as provided in Section 10.3) in cash a sum in the currency in which
Securities of such series are payable (except as provided pursuant to Section
3.1) equal to the principal and any premium and interest (including any
Additional Interest) accrued to the Redemption Date for Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section 12.3.
(c) Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee, the Company (if the Company
is then acting as its own Paying Agent) or the Guarantor (if the Guarantor is
then acting as Paying Agent) shall redeem such Securities if cash sufficient for
that purpose shall be deposited with the Trustee (or segregated by the Company
or the Guarantor, as the case may be,) for that purpose in accordance with the
terms of this Article. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall occur
and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Securities of such series; provided, that in case such default or
Event of Default shall have been cured or waived herein, such moneys shall
thereafter be applied on the next sinking fund payment date for the Securities
of such series on which such moneys may be applied pursuant to the provisions of
this Section 12.3.
ARTICLE XIII
Defeasance And Covenant Defeasance
Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.2
or Section 13.3 applied to any Securities or any series of Securities designated
pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2 or
13.3, in accordance with any applicable requirements provided pursuant to
Section 3.1 and upon compliance with the conditions set forth below in this
Article.
Section 13.2. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company and the Guarantor, if applicable, shall be deemed to have been
discharged from its obligations with respect to such Securities and under the
Guarantee in respect thereof as provided in this Section on and after the date
the conditions set forth in Section 13.4 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company and the
Guarantor, if applicable, shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and under the Guarantee in respect
thereof and to have satisfied all its other obligations under such Securities
and under the Guarantee in respect thereof, and this Indenture insofar as such
Securities and such Guarantee are concerned (and the Trustee, at the expense of
the Company or the Guarantor, if applicable, shall execute proper instruments
acknowledging the same), subject to the following which shall
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survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 13.4 and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest (including Additional Interest) on
such Securities when payments are due, (b) the Company's and, if applicable, the
Guarantor's obligations with respect to such Securities under Sections 3.6, 3.7,
10.2 and 10.3, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (d) the provisions of this Article. Subject to compliance
with this Article, the Company may exercise its option (if any) to have this
Section applied to any Securities notwithstanding the prior exercise of its
option (if any) to have Section 13.3 applied to such Securities.
Section 13.3. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (a)
the Company and the Guarantor, if applicable, shall be released from its
obligations under Sections 8.1, 8.3 and 10.8 and any covenants provided pursuant
to Section 3.1(n) or Section 9.1(a) or (c) for the benefit of the Holders of
such Securities and (b) the occurrence of any event specified in Section 5.1(d)
(with respect to any of Section 8.1 or 10.8 and any covenants provided pursuant
to Section 3.1(n) or Section 9.1(a) or (c)), Section 5.1(e), (f) or (j) or
Section 9.1(d) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 13.4 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company and the
Guarantor, if applicable, may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby. Notwithstanding anything herein
to the contrary, no Covenant Defeasance shall release any successor Person
referred to in Article VIII from its obligations to assume the obligations of
the Company and the Guarantor, as applicable, under Section 6.7 as a condition
to the consummation of any transaction contemplated by Section 8.1 or 8.3, as
applicable.
Section 13.4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.2 or
Section 13.3 to any Securities or any series of Securities, as the case may be:
(a) The Company or the Guarantor shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 6.9 and agrees to comply
with the provisions of this Article applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (i) money in an amount or (ii) Government
Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount or
(iii) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest
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on such Securities on the respective Stated Maturities or Redemption Dates
in accordance with the terms of this Indenture and such Securities.
(b) In the event of an election to have Section 13.2 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) since the date of this instrument, there
has been a change in the applicable Federal income tax law, in either case
(i) or (ii) to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(c) In the event of an election to have Section 13.3 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(e) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Section 5.1 (g) and
(h), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(h) If the money and/or Government Obligations deposited in trust
pursuant to this Section are sufficient to pay and discharge such
Securities on a Redemption Date, then at or prior to the time of such
deposit, either notice of such redemption shall have been given in
accordance with Section 11.4 or the Company shall have irrevocably
instructed the Trustee to give such notice of
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redemption and arrangements satisfactory to the Trustee for the giving of
such notice by the Trustee in the name, and at the expense, of the Company
shall have been made.
(i) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 13.5. Deposited Money and Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
(a) Subject to the provisions of paragraph (e) of Section 10.3, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 13.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.4 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent or the Guarantor acting as the Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium, interest and Additional
Amounts, but money so held in trust need not be segregated from other funds
except to the extent required by law. Moneys held by the Trustee under this
Section shall not be subject to the claims of the holders of Company Senior Debt
under Article XIV or Guarantor Senior Debt under Article XV.
(b) The Company and the Guarantor, jointly and severally, agree to pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section 13.4
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.
(c) Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon a Company Request
(or, if deposited by the Guarantor, to the Guarantor from time to time upon a
Guarantor Request) any money or Government Obligations held by it as provided in
Section 13.4 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
Section 13.6. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture, such Securities and the Guarantee from which the Company and the
Guarantor, if applicable, have been discharged or released pursuant to Section
13.2 or 13.3 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities, until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 13.5 with respect to such Securities in accordance with this Article;
provided, that if the Company or the Guarantor makes any payment of
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principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company or the Guarantor, as the case may
be, shall be subrogated to the rights (if any) of the Holders of such Securities
to receive such payment from the money so held in trust.
Section 13.7. Qualifying Trustee.
Any trustee appointed pursuant to Section 13.4 for the purpose of holding
trust funds deposited pursuant to that Section shall be appointed under an
agreement in form acceptable to the Trustee and shall provide to the Trustee a
certificate of such trustee, upon which certificate the Trustee shall be
entitled to conclusively rely, that all conditions precedent provided for herein
to the related Defeasance or Covenant Defeasance have been complied with. In no
event shall the Trustee be liable for any acts or omissions of said trustee.
ARTICLE XIV
Subordination of Securities
Section 14.1. Securities Subordinate to Company Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of, any premium and interest (including any Additional Interest) on each and all
of the Securities of each and every series are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Company
Senior Debt.
Section 14.2. No Payment When Company Senior Debt in Default; Payment Over
of Proceeds Upon Dissolution, Etc.
(a) If the Company shall default in the payment of any principal of or
any premium or interest on any Company Senior Debt when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by declaration
of acceleration or otherwise, then, upon written notice of such default to the
Company by the holders of Company Senior Debt or any trustee therefor, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, securities, by set-off
or otherwise) shall be made or agreed to be made on account of the principal of
or any premium or interest (including any Additional Interest) on any of the
Securities, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Securities.
(b) In the event of any Proceeding with respect to the Company, all Company
Senior Debt (including any interest thereon accruing after the commencement of
any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other company provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Company
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Senior Debt at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered directly to
the holders of Company Senior Debt in accordance with the priorities then
existing among such holders until all Company Senior Debt (including any
interest thereon accruing after the commencement of any Proceeding) shall have
been paid in full.
(c) In the event of any Proceeding, after payment in full of all sums
owing with respect to Company Senior Debt, the Holders of the Securities,
together with the holders of any obligations of the Company ranking on a parity
with the Securities, shall be entitled to be paid from the remaining assets of
the Company the amounts at the time due and owing on account of unpaid principal
of and any premium and interest on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company ranking junior to the Securities and such other obligations. If,
notwithstanding the foregoing, any payment or distribution of any character or
any security, whether in cash, securities or other property (other than
securities of the Company or any other company provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Company Senior
Debt at the time outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment) shall be received by the
Trustee or any Holder in contravention of any of the terms hereof and before all
Company Senior Debt shall have been paid in full, such payment or distribution
or security shall be received in trust for the benefit of, and shall be paid
over or delivered and transferred to, the holders of the Company Senior Debt at
the time outstanding in accordance with the priorities then existing among such
holders for application to the payment of all Company Senior Debt remaining
unpaid, to the extent necessary to pay all such Company Senior Debt in full. In
the event of the failure of the Trustee or any Holder to endorse or assign any
such payment, distribution or security, each holder of Company Senior Debt is
hereby irrevocably authorized to endorse or assign the same.
(d) The Trustee and the Holders, at the expense of the Company, shall take
such reasonable action (including the delivery of this Indenture to an agent for
the holders of Company Senior Debt or consent to the filing of a financing
statement with respect hereto) as may, in the opinion of counsel designated by
the holders of a majority in principal amount of the Company Senior Debt at the
time outstanding, be necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.
(e) The provisions of this Section 14.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(f) The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
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Section 14.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time, except during the
pendency of the conditions described in paragraph (a) of Section 14.2 or of any
Proceeding referred to in Section 14.2, from making payments at any time of
principal of and any premium or interest (including any Additional Interest) on
the Securities or (b) the application by the Trustee of any moneys deposited
with it hereunder to the payment of or on account of the principal of and any
premium or interest (including any Additional Interest) on the Securities or the
retention of such payment by the Holders, if, at the time of such application by
the Trustee, it did not have knowledge (in accordance with Section 14.8) that
such payment would have been prohibited by the provisions of this Article,
except as provided in Section 14.8.
Section 14.4. Subrogation to Rights of Holders of Company Senior Debt.
Subject to the payment in full of all amounts due or to become due on all
Company Senior Debt, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Company
Senior Debt, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Company Senior Debt
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Company that by its express terms is subordinated to
Company Senior Debt of the Company to substantially the same extent as the
Securities are subordinated to the Company Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Company Senior Debt) to the rights of the holders of such Company Senior
Debt to receive payments and distributions of cash, property and securities
applicable to the Company Senior Debt until the principal of and any premium and
interest (including any Additional Interest) on the Securities shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Company Senior Debt of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments made pursuant to the provisions of
this Article to the holders of Company Senior Debt by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Company Senior Debt, and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Company Senior
Debt.
Section 14.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Company Senior Debt on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between the Company and the Holders of the Securities,
the obligations of the Company, which are absolute and unconditional, to pay to
the Holders of the Securities the principal of, any premium and interest
(including any Additional Interest) on the Securities as and when the same shall
become due and payable in accordance with their terms, (b) affect the relative
rights against the Company of the Holders of the Securities and creditors of the
Company other than their rights in relation to the holders of Company Senior
Debt or (c) prevent the Trustee or the Holder of any Security (or to the extent
expressly provided herein, the holder of any Preferred Security) from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, including filing and voting claims in any Proceeding, subject to the
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rights, if any, under this Article of the holders of Company Senior Debt to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section 14.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in- fact for any and all
such purposes.
Section 14.7. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Company Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
(b) Without in any way limiting the generality of the paragraph (a) of
this Section, the holders of Company Senior Debt may, at any time and from to
time, without the consent of or notice to the Trustee or the Holders of the
Securities of any series, without incurring responsibility to such Holders of
the Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of such Holders of the Securities to
the holders of Company Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Company Senior Debt, or otherwise amend or supplement in any
manner Company Senior Debt or any instrument evidencing the same or any
agreement under which Company Senior Debt is outstanding, (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Company Debt, (iii) release any Person liable in any manner for the
collection of Company Senior Debt and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 14.8. Notice to Trustee.
(a) The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Company or a holder of
Company Senior Debt or from any trustee, agent or representative therefor;
provided, that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof any monies may become payable for any purpose (including, the
payment of the principal of and any premium or interest (including any
Additional Interest) on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
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(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or herself to be a holder of
Company Senior Debt (or a trustee, agent, representative or attorney-in-fact
therefor) to establish that such notice has been given by a holder of Company
Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor).
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Company Senior
Debt to participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Company Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 14.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Company Senior Debt and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
Section 14.10. Trustee Not Fiduciary for Holders of Company Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Company Senior Debt and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Company Senior Debt shall
be entitled by virtue of this Article or otherwise.
Section 14.11. Rights of Trustee as Holder of Company Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Company Senior Debt that may at
any time be held by it, to the same extent as any other holder of Company Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Section 14.12. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of
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the Trustee, provided, that Sections 14.8 and 14.11 shall not apply to the
Company or any Affiliate of the Company if the Company or such Affiliate acts as
Paying Agent.
ARTICLE XV
Guarantee and Indemnity
Section 15.1. Applicability of Article.
Securities of any series which are to be Guaranteed Securities shall be
subject to the provisions of this Article XV.
Section 15.2. The Guarantee.
The Guarantor hereby agrees to unconditionally and irrevocably guarantee
(the form of such guarantee to be established as provided in Section 2.5) to
each Holder of a Security authenticated and delivered by the Trustee (a) the due
and punctual payment of the principal of, any premium and interest and all other
amounts on, or in respect of, on and, if applicable, any Additional Tax Sums
with respect to such Security and the due and punctual payment of the sinking
fund payments (if any) provided for pursuant to the terms of such Security, when
and as the same shall become due and payable, whether at Stated Maturity, by
acceleration, redemption, repayment or otherwise, in accordance with the terms
of such Security and of this Indenture and (b) the full and punctual performance
within the applicable grace periods of all other obligations of the Company
under this Indenture and the Securities. In case of the failure of the Company
punctually to pay any such principal, premium, interest (including any
Additional Interest), Additional Tax Sums or sinking fund payment, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at Stated Maturity, upon
acceleration, redemption, repayment or otherwise, and as if such payment were
made by the Company. In case of the failure of the Company to perform any other
obligation of the Company to the Holders of Securities of any series, for
whatever reason, the Guarantor shall be obligated to perform or cause the
performance of the same immediately. An Event of Default under this Indenture or
the Securities of any series shall constitute an event of default under this
Guarantee, and shall entitle the Holders of Securities of such series to
accelerate the obligations of the Guarantor hereunder in the same manner and to
the same extent as the obligations of the Company. The Trustee is entitled to
enforce this Guarantee in accordance with the provisions of Article VI.
Section 15.3. Additional Amounts.
All payments under the Guarantee shall be made by the Guarantor without
withholding or deduction at source for, or on account of, any present or future
taxes, fees, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of Bermuda or any other jurisdiction in which
the Guarantor is organized or resident for tax purposes (each, a "taxing
jurisdiction") or any political subdivision or taxing authority thereof or
therein, unless such taxes, fees, duties, assessments or governmental charges
are required to be withheld or deducted by (i) the laws (or any regulations or
ruling promulgated thereunder) of a taxing jurisdiction or any political
subdivision or taxing authority thereof or therein or (ii) an official position
regarding the application, administration, interpretation or enforcement of any
such laws, regulations
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or rulings (including a holding by a court of competent jurisdiction or by a
taxing authority in a taxing jurisdiction or any political subdivision thereof).
If any withholding or deduction at source is required, the Guarantor shall,
subject to the limitations and exceptions set forth below, pay to the Holder of
any such Security such additional amounts as may be necessary so that every net
payment under the Guarantee made to such Holder, after such withholding or
deduction, shall not be less than the amount provided for in the Guarantee and
this Indenture to be then due and payable (the "Additional Amounts"); provided,
that the Guarantor shall not be required to make payment of such Additional
Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of
whatever nature which would not have been imposed but for
the fact that such Holder or the beneficial owner of such
Security (other than a Trust): (A) was a resident,
domiciliary or national of, or engaged in business or
maintained a permanent relevant taxing jurisdiction or
any political subdivision thereof or therein or otherwise
had some connection with the relevant taxing jurisdiction
other than by reason of the mere ownership of, or receipt
of payment under, such Security or the Guarantee; (B)
presented the related Security for payment in the
relevant taxing jurisdiction or any political subdivision
thereof or therein, unless such Security could not have
been presented for payment elsewhere; or (C) presented
such Security more than thirty (30) days after the date
on which the payment in respect of such Security first
became due and payable, except to the extent that the
Holder or beneficial owner would have been entitled to
such Additional Amounts if it had presented such Security
for payment on any day within such period of thirty (30)
days;
(2) any estate, inheritance, gift, sale, transfer, personal
property or similar tax, fee, duty, assessment or other
governmental charge; or
(3) any tax, fee, duty, assessment or other governmental
charge that is imposed or withheld by reason of the
failure by the Holder or the beneficial owner of such
Security (other than a Trust) to comply, within 90 days,
with any reasonable request by the Guarantor addressed to
the Holder or such beneficial owner (A) to provide
information concerning the nationality, residence or
identity of the Holder or such beneficial owner or (B) to
make any declaration or other similar claim or satisfy
any information or reporting requirement, which, in the
case of (A) or (B), is required or imposed by statute,
treaty, regulation or administrative practice of the
relevant taxing jurisdiction or any political subdivision
thereof or therein as a precondition to exemption from
all or part of such tax, fee, duty, assessment or other
governmental charge;
nor shall Additional Amounts be paid with respect to any payment under the
Guarantee to any Holder where the beneficial owner of the related Security is a
fiduciary or partnership to the extent such payment would be required by the
laws of the relevant taxing jurisdiction (or any political subdivision or
relevant taxing authority thereof or therein) to be included in the income for
tax purposes of a beneficiary with respect to such fiduciary or partner of
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such partnership who would not have been entitled to such Additional Amounts had
it been the Holder of the Security.
Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of or any premium, interest or any other amounts on, or in
respect of, any Security of any series or the net proceeds received on the sale
or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided by the terms of
such series established hereby or pursuant hereto to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of Additional Amounts
(if applicable) in any provision hereof shall not be construed as excluding the
payment of Additional Amounts in those provisions hereof where such express
mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series or the related Guarantee, at least 10 days
prior to the first Interest Payment Date with respect to a series of Securities
(or if the Securities of such series shall not bear interest prior to Maturity,
the first day on which a payment of principal is made), and at least 10 days
prior to each date of payment of principal or interest if there has been any
change with respect to the matters set forth in the below mentioned Guarantor's
Officer's Certificate, the Guarantor shall furnish to the Trustee and the
principal Paying Agent or Paying Agents, if other than the Trustee, a
Guarantor's Officer's Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of and premium, if any,
interest or any other amounts on the Securities of such series shall be made to
Holders of Securities of such series without withholding for or on account of
any tax, fee, duty, assessment or other governmental charge described in this
Section 15.3. If any such withholding shall be required, then such Guarantor's
Officer's Certificate shall specify by jurisdiction in which the Holders are
resident for tax purposes the amount, if any, required to be withheld on such
payments to such Holders of Securities, and the Guarantor agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by this Section
15.3. The Guarantor covenants to indemnify the Trustee and any Paying Agent for,
and to hold them harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Guarantor's Officer's Certificate furnished pursuant to this Section 15.3.
Section 15.4 Guarantee Unconditional, etc.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal, and shall be absolute, irrevocable and unconditional, irrespective
of, and shall be unaffected by, any invalidity, irregularity or unenforceability
of any Security, this Indenture or the obligations of the Company or any other
guarantor to the Holder or the Trustee hereunder, any failure to enforce the
provisions of any Security or this Indenture, or any waiver, modification,
consent or indulgence granted with respect thereto by the Holder of such
Security or the Trustee, the recovery of any judgment against the Company or any
action to enforce the same, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives the benefit of diligence, presentment, demand of
payment, filing of claims with a court in the event of merger, insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to any such Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged except by payment in full of the principal of, any
premium and interest on and sinking fund payments
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required with respect to, the Securities and the complete performance of all
other obligations contained in the Securities, this Indenture and the Guarantee.
This Guarantee is a guarantee of payment and not of collection. The Guarantor
further agrees, to the fullest extent that it lawfully may do so, that, as
between the Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 5.2 hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or prohibition extant under any
bankruptcy, insolvency, reorganization or other similar law of any jurisdiction
preventing such acceleration in respect of the obligations guaranteed hereby (in
accordance with procedures acceptable to the Trustee), and (2) in the event of
any acceleration of such obligations as provided in Article V, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purpose of this Guarantee. Neither the Trustee nor any other
Person shall have any obligation to enforce or exhaust any rights or remedies or
to take any other steps under any security for the Securities or against the
Company or any other Person or any property of the Company or any other Person
before the Trustee is entitled to demand payment and performance by the
Guarantor of its liabilities and obligations under this Guarantee or under this
Indenture.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Securities are, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on such Securities, whether as a "voidable preference,"
"fraudulent transfer" or otherwise, all as though such payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities of the
relevant series shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
Section 15.5. Execution of Guarantee.
To evidence its guarantee specified in this Article XV to the Holders of
any Security of any series, the Guarantor hereby agrees to execute the
Guarantee, in substantially the form set forth in Section 15.6 (except as
otherwise permitted by Section 2.5) to be endorsed on each Security of such
series authenticated and delivered by the Trustee. Such Guarantee shall be
executed on behalf of the Guarantor by its Chairman of the Board, its Vice
Chairman of the Board, its President or one of its Vice Presidents and attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile. A Guarantee bearing
the manual or facsimile signatures of individuals who were at any time the
proper officers of the Guarantor shall bind the Guarantor, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Guarantee or did not hold such offices at
the date of such Guarantee.
If the form of the Guarantee of the series has been established in or
pursuant to one or more Guarantor Board Resolutions as permitted by Section 2.5,
in authenticating the Securities on which such Guarantee is endorsed, and
accepting the additional responsibilities under this Indenture in relation to
such Guarantee, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating,
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(a) if the form of such Guarantee has been established by or pursuant to
Guarantor Board Resolution as permitted by Section 2.5, that such form has been
established in conformity with the provisions of this Indenture;
(b) that the Guarantee, when the Securities on which the Guarantee has
been endorsed have been authenticated and delivered by the Trustee and the
Guarantee has been issued by the Guarantor in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute a valid and
legally binding obligation of the Guarantor enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(c) that all laws and requirements in respect of the execution and
delivery by the Guarantor of such Guarantee have been complied with.
If such form has been so established for such Guarantee, the Trustee shall not
be required to authenticate the Securities on which such Guarantee is endorsed
if the issue of such Guarantee pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities, the Guarantee
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
A Guarantee shall not be valid or become obligatory for any purpose with
respect to a Security of any series until there appears on such Security a
certificate of authentication substantially in the form provided for herein,
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any such Security shall be conclusive evidence, and the only
evidence, that such Guarantee has been duly delivered hereunder.
Section 15.6. Form of Guarantee.
FOR VALUE RECEIVED, MUTUAL RISK MANAGEMENT LTD., a Bermuda corporation (the
"Guarantor," which term includes any successor guarantor under the Indenture
referred to in the Security upon which this Guarantee is endorsed (the
"Indenture")), hereby guarantees to the holder of the Security upon which this
Guarantee is endorsed the due and punctual payment of the principal of, any
premium and interest (including any Additional Interest) on, and, if applicable,
any Additional Tax Sums with respect to such Security and the due and punctual
payment of the sinking fund payments (if any) provided for pursuant to the terms
of such Security, when and as the same shall become due and payable, whether at
Stated Maturity, by acceleration, redemption, repayment or otherwise and the
full and punctual performance within applicable grace periods of all other
obligations of the Company under the Indenture and such Security.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to said
Security or the indebtedness evidenced thereby and all demands whatsoever and
covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in this Guarantee.
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The indebtedness evidenced by this Guarantee is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Guarantor Senior Debt, and this Guarantee is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of the
Security on which this Guarantee is endorsed, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his or her behalf to take such actions as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance of the Security on which this Guarantee is endorsed, waives all
notice of the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Guarantor Senior Debt, whether now outstanding
or hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Guarantee constitutes a guarantee of payment and not of collection and
ranks equally and ratably with all other unsecured and unsubordinated
obligations of the Guarantor.
The Guarantor hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened precedent to the
creation and issuance of this Guarantee, and to constitute the same the legal,
valid and binding obligation of the Guarantor enforceable in accordance with its
terms have been done and performed and have happened in compliance with all
applicable laws.
This Guarantee is dated the date of the Security upon which it is endorsed.
All capitalized terms used in this Guarantee but not defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
The terms of this Guarantee include those stated in the Indenture. This
Guarantee is subject to all such terms, and Holders are referred to the
Indenture for a statement of such terms.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this Guarantee is
endorsed shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed.
MUTUAL RISK MANAGEMENT LTD.
By_________________________________
Name:
Title:
------------------------------------
Section 15.7. Subrogation.
The Guarantor shall be subrogated to all rights of the Holder of any
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of a Guarantee; provided, that the
Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon, such right of subrogation until the principal of, any
premium and interest (including any Additional Interest) on, and any Additional
Amounts and, if applicable, any Additional Tax Sums and sinking fund payments
required with respect to, all Securities of the series of which such Security is
a part shall have been paid in full. If any amount shall be paid to the
Guarantor in violation of the preceding sentence and the Securities of
the relevant series shall not have been paid in full, such amount shall have
been deemed to have been paid to the Guarantor for the benefit of, and held in
trust for the benefit of, the Holders of the Securities of such series, and
shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon such Securities, whether matured or unmatured, in
accordance with the terms of this Indenture.
Section 15.8. Indemnity.
As a separate and alternative stipulation, the Guarantor unconditionally
and irrevocably agrees that any sum expressed to be payable by the Company under
this Indenture or the Securities but which is for any reason (whether or not now
known or becoming known to the Company, the Guarantor, the Trustee or any Holder
of any Security) not recoverable from the Guarantor on the basis of a guarantee
will nevertheless be recoverable from it as if it were the sole principal debtor
and will be paid by it to the Trustee on demand. This indemnity constitutes a
separate and independent obligation from the other obligations in this
Indenture, gives rise to a separate and independent cause of action and will
apply irrespective of any indulgence granted by the Trustee or any Holder of any
Security.
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ARTICLE XVI
Subordination of Guarantee
Section 16.1. Guarantee Subordinate to Guarantor Senior Debt.
The Guarantor covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment by the Guarantor
pursuant to the Guarantee of the principal of, any premium and interest
(including any Additional Interest) on and Additional Amounts (if any) and
Additional Tax Sums (if any) with respect to each and all of the Securities of
each and every series of Guaranteed Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Guarantor Senior Debt.
Section 16.2. No Payment When Guarantor Senior Debt in Default; Payment
Over of Proceeds Upon Dissolution, Etc.
(a) If the Guarantor shall default in the payment of any principal of or
any premium or interest on any Guarantor Senior Debt when the same becomes due
and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, upon written notice of such
default to the Guarantor by the holders of Guarantor Senior Debt or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made by the
Guarantor pursuant to the Guarantee on account of the principal of or any
premium or interest (including any Additional Interest) on or any Additional
Amounts or Additional Tax Sums with respect to, any of the Securities, or in
respect of any redemption, repayment, retirement, purchase or other acquisition
of any of the Securities.
(b) In the event of any Proceeding with respect to the Guarantor, all
Guarantor Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, is made
by the Guarantor pursuant to the Guarantee to any Holder of any of the
Securities on account thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Guarantor or any
other company provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Guarantor Senior Debt at the time outstanding
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the Guarantee
in respect of the Securities of any series shall be paid or delivered directly
to the holders of Guarantor Senior Debt in accordance with the priorities then
existing among such holders until all Guarantor Senior Debt (including any
interest thereon accruing after the commencement of any Proceeding) shall have
been paid in full.
(c) In the event of any Proceeding with respect to the Guarantor, after
payment in full of all sums owing with respect to Guarantor Senior Debt, the
Holders of the Securities, together with the holders of any obligations of the
Guarantor ranking on a parity with the Guarantee in respect of the Securities,
shall be entitled to be paid from the remaining assets of the Guarantor the
amounts at the time due and owing under the Guarantee on account of unpaid
principal of and any premium and interest on and any Additional
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Amounts with respect to the Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Guarantor ranking
junior to the Guarantee in respect of the Securities and such other obligations.
If, notwithstanding the foregoing, any payment or distribution of any character
or any security, whether in cash, securities or other property (other than
securities of the Guarantor or any other company provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Guarantor Senior
Debt at the time outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment) shall be received by the
Trustee or any Holder in contravention of any of the terms hereof and before all
Guarantor Senior Debt shall have been paid in full, such payment or distribution
or security shall be received in trust for the benefit of, and shall be paid
over or delivered and transferred to, the holders of the Guarantor Senior Debt
at the time outstanding in accordance with the priorities then existing among
such holders for application to the payment of all Guarantor Senior Debt
remaining unpaid, to the extent necessary to pay all such Guarantor Senior Debt
in full. In the event of the failure of the Trustee or any Holder to endorse or
assign any such payment, distribution or security, each holder of Guarantor
Senior Debt is hereby irrevocably authorized to endorse or assign the same.
(d) The Trustee and the Holders, at the expense of the Guarantor, shall
take such reasonable action (including the delivery of this Indenture to an
agent for the holders of Guarantor Senior Debt or consent to the filing of a
financing statement with respect hereto) as may, in the opinion of counsel
designated by the holders of a majority in principal amount of the Guarantor
Senior Debt at the time outstanding, be necessary or appropriate to assure the
effectiveness of the subordination effected by these provisions.
(e) The provisions of this Section 16.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Guarantor in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(f) The securing of any obligations of the Guarantor, otherwise ranking on
a parity with the Guarantee or ranking junior to the Guarantee, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Guarantee or ranking junior to the Guarantee.
Section 16.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in the
Guarantee shall prevent (a) the Guarantor, at any time, except during the
pendency of the conditions described in paragraph (a) of Section 16.2 or of any
Proceeding referred to in Section 16.2, from making payments pursuant to the
Guarantee at any time of principal of and any premium or interest (including any
Additional Interest) on or any Additional Amounts in respect to, the Securities
or (b) the application by the Trustee of any moneys deposited with it hereunder
to the payment of or on account of the principal of and any premium or interest
(including any Additional Interest) and any Additional Amounts on the Securities
or the retention of such payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge (in accordance with
Section 16.8) that such payment would have been prohibited by the provisions of
this Article, except as provided in Section 16.8.
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Section 16.4. Subrogation to Rights of Holders of Guarantor Senior Debt.
Subject to the payment in full of all amounts due or to become due on all
Guarantor Senior Debt, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Guarantor
Senior Debt, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Guarantor Senior Debt
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Guarantor that by its express terms is subordinated
to Guarantor Senior Debt of the Guarantor to substantially the same extent as
the Guarantee is subordinated to the Guarantor Senior Debt and is entitled to
like rights of subrogation by reason of any payments or distributions made to
holders of such Guarantor Senior Debt) to the rights of the holders of such
Guarantor Senior Debt to receive payments and distributions of cash, property
and securities applicable to the Guarantor Senior Debt until the principal of
and any premium and interest (including any Additional Interest) on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Guarantor Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
made pursuant to the provisions of this Article to the holders of Guarantor
Senior Debt by Holders of the Securities or the Trustee, shall, as among the
Guarantor, its creditors other than holders of Guarantor Senior Debt, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Guarantor to or on account of the Guarantor Senior Debt.
Section 16.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Guarantor Senior Debt on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Guarantee is
intended to or shall (a) impair, as between the Guarantor and the Holders of the
Securities, the obligations of the Guarantor, which are absolute and
unconditional, to pay to the Holders of the Securities amounts due under the
Guarantee when the same shall become due and payable in accordance with their
terms, (b) affect the relative rights against the Guarantor of the Holders of
the Securities and creditors of the Guarantor other than their rights in
relation to the holders of Guarantor Senior Debt or (c) prevent the Trustee or
the Holder of any Securities (or to the extent expressly provided herein, the
holder of any Preferred Security) from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, including filing
and voting claims in any Proceeding, subject to the rights, if any, under this
Article of the holders of Guarantor Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 16.6. Trustee to Effectuate Subordination.
Each Holder of Securities by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
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Section 16.7. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Guarantor Senior
Debt to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Guarantor
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Guarantor with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a) of this
Section, the holders of Guarantor Senior Debt may, at any time and from to time,
without the consent of or notice to the Trustee or the Holders of the Securities
of any series, without incurring responsibility to such Holders of the
Securities and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of such Holders of the Securities to the
holders of Guarantor Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Guarantor Senior Debt, or otherwise amend or supplement in
any manner Guarantor Senior Debt or any instrument evidencing the same or any
agreement under which Guarantor Senior Debt is outstanding, (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Guarantor Senior Debt, (iii) release any Person liable in any manner
for the collection of Guarantor Senior Debt and (iv) exercise or refrain from
exercising any rights against the Guarantor and any other Person.
Section 16.8. Notice to Trustee.
(a) The Guarantor shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Guarantor that would prohibit the making
of any payment to or by the Trustee in respect of the Guarantee pursuant to this
Article. Notwithstanding the provisions of this Article or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee in respect of the Guarantee pursuant to this Article, unless and
until a Responsible Officer of the Trustee shall have received written notice
thereof from the Guarantor or a holder of Guarantor Senior Debt or from any
trustee, agent or representative therefor; provided, that if the Trustee shall
not have received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any monies may become
payable for any purpose (including, the payment pursuant to the Guarantee of the
principal of and any premium on or interest (including any Additional Interest)
on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
monies and to apply the same to the purpose for which they were received and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or herself to be a holder of
Guarantor Senior Debt (or a trustee, agent, representative or attorney-in-fact
therefor) to establish that such notice has been given by a holder of Guarantor
Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor).
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Guarantor Senior
Debt to participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Guarantor Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment
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or distribution and any other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Section 16.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Guarantor referred to
in this Article, the Trustee and the Holders of the Securities shall be entitled
to conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, the holders of the Guarantor Senior Debt and other indebtedness
of the Guarantor, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
Section 16.10. Trustee Not Fiduciary for Holders of Guarantor Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Guarantor Senior Debt and
shall not be liable to any such holders if it shall in good faith mistakenly pay
over or distribute to Holders of the Securities or to the Guarantor or to any
other Person cash, property or securities to which any holders of Guarantor
Senior Debt shall be entitled by virtue of this Article or otherwise.
Section 16.11. Rights of Trustee as Holder of Guarantor Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Guarantor Senior Debt that may at
any time be held by it, to the same extent as any other holder of Guarantor
Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Section 16.12. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee, provided, that Sections 16.8
and 16.11 shall not apply to the Company or the Guarantor or any Affiliate of
the Company or the Guarantor if the Guarantor or such Affiliate acts as Paying
Agent.
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested, all as of the day and year first above written.
MUTUAL GROUP LTD.,
as Issuer
By: ________________________________
Name:
Title:
Attest: ________________________
MUTUAL RISK MANAGEMENT LTD.,
as Guarantor
By: ________________________________
Name:
Title:
Attest: ________________________
THE CHASE MANHATTAN BANK
By: ________________________________
Name:
Title:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ___________, ____, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ____________________ of Mutual Risk Management Ltd.,
one of the corporations described in and which executed the foregoing
instrument, and that he signed his name thereto by like authority.
_____________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ___________, ____, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ____________________ of Mutual Group Ltd., one of the
corporations described in and which executed the foregoing instrument, and that
he signed his name thereto by like authority.
_____________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ___________, ____, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________ of The Chase Manhattan Bank, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
_____________________________
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