EXHIBIT 3.2
TRUST INDENTURE AGREEMENT
TRUST INDENTURE AGREEMENT
THIS INDENTURE is dated as of , 1999 between SFG
Mortgage & Investment Company, Inc., a Washington corporation (hereinafter
called the "Company"), having its principal office at 923 Powell Avenue SW,
Renton, Washington 98057, and US Bank, a national banking association
(hereinafter called the "Trustee"), having its corporate trust office at 601
Union Street, Suite 2120, Seattle, Washington 98104.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Investment Debentures, to be issued
in one or more series (hereinafter called the "Debentures"), as in this
Indenture provided. The initial series of Debentures to be issued hereunder is
to be known as the Company's Investment Debentures, Series I, limited to the
aggregate principal amount of $25,000,000, the further terms and provisions of
which are set forth in Section 3-12.
All things necessary to make the Debentures when executed by the Company,
authenticated by the Trustee, delivered as authorized by the Company and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debentures
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 1-1. DEFINITIONS.
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) "This Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
(2) All references in this instrument to designated "articles,"
"sections" and other subdivisions are to the designated Articles, Sections and.
other subdivisions of this instrument as
originally executed. The words "herein," "hereof," and 'hereunder," and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
(3) The terms defined include the plural as well as the singular.
(4) All other terms used herein which are defined in the Trust Indenture
Act of 1939, either directly or by reference therein, have the meanings assigned
to them therein.
(5) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles.
(b) Certain terms, used principally in Article Six, are defined in that
Article.
(c) Other definitions:
"Act" when used with respect to any Debentureholder has the meaning
specified in Section 1-4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control' when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling' and "controlled" have meanings correlative to the
foregoing.
"Applicable Debentures" has the meaning set forth in Section 5-2.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on
each business day, whether or not Published on Saturdays, Sundays or holidays.
Whenever successive weekly publications in an Authorized Newspaper are required
hereunder they may be made (unless otherwise expressly provided herein) on the
same or different days of the week and in the same or in different Authorized
Newspapers.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the City of Seattle,
Washington are authorized by law to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Debentureholder" means a Person in whose name a Debenture is registered in
the Debenture Register.
"Debenture Register" and 'Debenture Registrar" have the respective meanings
specified in Section 3-7.
"Defaulted Interest" has the meaning specified in Section 3-9.
"Event of Default" has the meaning specified in Article Five.
"Holder" when used with respect to any Debenture means a Debentureholder.
"Independent" when used with respect to any specified Person means such a
Person who (1) is in fact independent, (2) does not have any direct financial
interest or any material indirect financial interest in the Company or in any
other obligor upon the Debentures or in any Affiliate of the Company or of such
other obligor, and (3) is not connected with the Company or such other obligor
or any Affiliate of the Company or of such other obligor, as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions. Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall be
appointed by a Company Order and approved by the Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within the meaning
hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Debentures.
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"Investment Debentures of Series I," "Investment Debentures, Series I" or
"Series I Investment Debentures" means the Debentures established by Section
3-12 hereof.
'Maturity" when used with respect to any Debenture means the date on which
the principal of such Debenture 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" has the meaning specified in Article Five.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee. Wherever this
Indenture requires that an Officers' Certificate be signed also by an engineer
or an accountant or other expert, such engineer, accountant or other expert
(except as otherwise expressly provided in this Indenture) may be in the employ
of the Company, and shall be acceptable to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be counsel for the Company, and
shall be acceptable to the Trustee.
"Outstanding" when used with respect to Debentures means, as of the date of
determination, all Debentures' theretofore authenticated and delivered under
this Indenture, EXCEPT:
(i) Debentures theretofore canceled by the Company;
(ii) Debentures for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Debentures, PROVIDED that, if such
Debentures are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and
(iii) Debentures in exchange for or in lieu of which other Debentures
have been authenticated and delivered pursuant to this Indenture;
PROVIDED, however, that in determining whether the Holders of the requisite
principal amount of Debentures Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon ANY such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee knows to be so owned shall
be so disregarded. Debentures so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Debentures and
that the pledgee is
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not the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor.
When used with respect to Debentures of a given series, the foregoing
definition shall be applicable to Debentures of such series as though only the
Debentures of such series were referred to therein.
"Paying Agent" means any Person authorized by the Company, including
Persons employed by or affiliated with the Company, to pay the principal of and
premium, if any, or interest on any Debentures on behalf of the Company.
"Person" means any individual,- corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" with respect to Investment Debentures, Series I, means
the City of Renton, State of Washington, and with respect to Debentures of other
series, the City of Renton, State of Washington or such other place or places as
may be specified in the supplemental indenture creating such series.
"Predecessor Debentures" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture; and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 3-8 in lieu of a lost, destroyed or
stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
"Redemption Date" when used with respect to any Debenture to be redeemed
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Debenture to be redeemed
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
means, with respect to Investment Debentures, Series I, the 15th day (whether or
not a Business Day) of the calendar month next preceding the Interest Payment
Date as specified on each Investment Debenture, Series I, and with respect to
Debentures of other series, such date as shall be specified in the supplemental
indenture creating such series.
"Responsible officer" when used with respect to the Trustee means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller and 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
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means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Special Record Date" for the- payment of any Defaulted Interest (as
defined in Section 3-9) means a date fixed by the Trustee pursuant to Section
3-9.
"Stated Maturity" when used with respect to any Debenture or any
installment of interest thereon means the date specified in such Debenture as
the fixed date on which the principal of such Debenture or such installment of
interest is due and payable.
"Trustee" means the Person named as the 'Trustee" in' the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as in
force at the date as of which this instrument was executed.
"Vice President" when used with respect to the Company or the Trustee means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
Section 1-2. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
Counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;.
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that each such individual has made such examination or
investigation as, in such individual's opinion, is necessary to enable such
individual to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
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(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1-3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
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 bv the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Comoany, unless such Counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1-4. ACTS OF DEBENTUREHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Debentureholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Debentureholders in person or by
agent duly appointed in writing; and, except as -herein otherwise expressly
provided,' such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Debentureholders 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 (subject to Section 6-1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
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such execution is by an officer of a corporation or a member of a partnership,
on behalf of such corporation or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date of
the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Debentures shall be proved by the Debenture
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debenture shall bind the Holder of
every Debenture issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the Trustee
or the Company.in reliance thereon, whether or not notation of such action is
made upon such Debenture.
Section 1-5. NOTICES, ETC., TO TRUSTEE AND COMPANV.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Debentureholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any debentureholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its principal corporate trust office, located
at 601 Union Street, Suite 2120, Seattle, Washington 98101 or at such other
address previously furnished in writing to the Company by the Trustee for such
purpose, or
(2) the Company by the Trustee or by any Debentureholder shall be
sufficient for every purpose hereunder if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at 923 Powell Avenue SW,
Washington 98057, or at such other address previously furnished in writing to
the Trustee by the Company for such purpose.
Section 1-6. NOTICES TO DEBENTUREHOLDERS; WAIVER.
Where this Indenture provides for notice to Debentureholders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and desposited in the United States mail, first-class
postage prepaid, to each Debentureholder affected by such event, at his address
as it appears in the Debenture Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Debentureholders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Debentureholder shall affect the sufficiency of such notice with respect to
other Debentureholders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. 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
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notice by Debentureholders 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.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible to make
publication of any notice in an Authorized Newspaper or Authorized Newspapers as
required by this Indenture, then (notwithstanding such provision) such method of
publication or notification as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice.
Section 1-7. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of TIA, such required provision shall control.
Section 1-8. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1-9. SUCCESSORS AND ASSIQNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 1-10. SEVERABILITY CLAUSE.
In case any provision in this Indenture or in the Debentures 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 Debentures, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Debentureholders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 1-12. GOVERNING LAW.
This Indenture shall be construed in accordance with and be governed by the
laws of the State of Washington.
Section 1-13. LEGAL HOLIDAYS.
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In any case where any Interest Payment Date, any Redemption Date, or the
Stated Maturity of any Debenture, or any date on which any Defaulted Interest is
proposed to be paid, shall not be a Business Day, then (notwithstanding any
other provision of this Indenture) payment of interest, principal and premium,
if any, need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or Redemption Date or at the Stated Maturity, or on the date on which the
Defaulted Interest is proposed to be paid, and no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity or date fdr the payment of Defaulted Interest, as the case may be.
Section 1-14. EXECUTION IN COUNTERPARTS.
This Indenture 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.
ARTICLE TWO
Debenture Forms
Section 2-1. FORMS GENERALLY.
The Debentures and the certificates of authentication thereon shall be
substantially in the forms set forth in this Article Two, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange, or as may,
consistently herewith, be determined by the officers executing such Debentures,
as evidenced by their execution of the Debentures. Any portion of the text of
any Debenture may be set forth on the reverse thereof , with an appropriate
reference thereto on the face of the Debenture.
The definitive Debentures shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange, all as determined by
the officers executing such Debentures, as evidenced by their execution of such
Debentures.
Section 2-2. FORM OF INVESTMENT DEBENTURES, SERIES I.
SFG MORTGAGE & INVESTMENT COMPANY, INC.
923 Powell Avenue SW
Renton, Washington 98057
Investment Debenture, Series I
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Issued To:
Principal Amount:
Issue Date:
Maturity Date:
Interest Rate:
Certificate Number:
Interest Payable:
1. THE DEBENTURE
This is a duly authorized Debenture of SFG Mortgage & Investment Company,
Inc. ("SFG Mortgage"). This Debenture is issued under an Indenture dated
, 1999 ("Indenture") between SFG Mortgage and US Bank as Trustee
("Trustee"). The Indenture permits SFG Mortgage to issue an unlimited amount of
Debentures, the terms of which may vary according to series. This Debenture is
of the series stated above; that series is limited in aggregate principal amount
as stated in the Indenture (or supplemental indentures). The Indenture (and
supplemental indentures) contains statements of the rights of the
Debentureholders, SFG Mortgage and the Trustee and provisions concerning
authentication and delivery of the Debentures. Definitions of certain terms
used in this Debenture are also found in the Indenture (and supplemental
indentures) .
2. PAYMENT OF PRINCIPAL
For value received, SFG Mortgage promises to pay the principal amount of
this Debenture at the maturity date stated above. Payment will be made to the
Person to whom this Debenture is issued, or registered assigns.
3. PAYMENT OF INTEREST
SFG Mortgage promises to pay interest on the principal amount of this
Debenture from the issue date until the principal amount is paid or made
available for payment. Interest will be computed at the annual interest rate
stated above and payable quarterly. Interest will be payable or reinvested as
stated above or as otherwise elected by the Person entitled to payment of
interest. SFG Mortgage will pay interest to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the Regular Record Date for the payment of interest. The Regular
Record Date is the 15th day of the calendar month immediately preceding an
Interest Payment Date.
4. DEBENTURE HOLDER'S' PREPAYMENT RIGHTS
The Person to which payment is owed under this Debenture shall have,
subject to the limitations set forth herein, have the opportunity to request
prepayment of the principal amount of the Debenture, together with any unpaid
interest owed to them by SFG Mortgage. Beginning upon the first anniversary of
the date each Debenture was issued, SFG Mortgage will be obligated to prepay the
balance due a Debenture holder requesting early redemption in a ninety (90) day
period
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beginning the first day of the first full month after receipt of a request for
prepayment from such Debenture holder. The redemption payment amount shall be
equal to the principal amount due under the Debenture, together with all accrued
and unpaid interest. Provided, that SFG Mortgage may charge a redemption
processing fee for its reasonable costs incurred in processing the prepayment
request, which fee in no event will exceed $500.00 per Debenture.
SFG Mortgage has the right to limit, in its sole discretion, the total
amount of Debentures redeemed in any ninety (90) day period to a maximum of
twelve and one-half percent (12.5%) of the then outstanding total principal
balance of Debentures if, in SFG Mortgage's opinion, the redemption of
Debentures during that period of time would compromise SFG Mortgage's ability to
pay its obligations (including principal and interest payments on the remaining
Debentures) in the ordinary course of business. At the end of the term of any
such suspension period, redemptions will be processed and paid in the order
first received in proper form by SFG Mortgage. If, in any ninety (90) day
period, during which SFG Mortgage has limited the Debenture holder's right to
redemption SFG Mortgage receives requests for prepayment from Debenture holders
which exceed twelve and one-half percent (12.5%) of the total principal amount
due under all outstanding Debentures, SFG Mortgage may, at its option, pay to
all Persons requesting prepayment a pro rated amount, which amount shall be
based upon the principal amount due under each Debenture holder who has
requested early redemption.
5. REINVESTMENT OF INTEREST PAYMENTS
The Person to which payment is owed under this Debenture may elect to
reinvest all or fifty percent (50%) of the interest payments under this
Debenture upon thirty (30) days written notice to SFG Mortgage. If the Person
makes such an election, the amount reinvested will be treated as an addition to
the principal amount due under this Debenture. SFG Mortgage may terminate or
restrict the reinvestment option at any time upon written notice to the holder
of this Debenture. The holder of this Debenture may upon thirty (30) days
written notice to SFG Mortgage elect to change the terms of the reinvestment or
discontinue it altogether. Provided, however, any amounts previously reinvested
shall not become due and payable except upon the due date of the principal
amount due under this Debenture.
6. CALL OF DEBENTURES BY COMPANY
Some or all of the Debentures are callable at the Company's option
beginning on the first anniversary of the date each Debenture was issued. On or
after such dates each of the Debentures will be subject to prepayment at the
option of the Company, in whole or in part, at the prices set forth below, plus
accrued and unpaid interest thereon, if any, to the date of prepayment:
Between First and Second Anniversary 100.50% of Principal
Between Second and Third Anniversary 100.25% of Principal
Thereafter 100.00% of Principal
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7. MISCELLANEOUS
The provisions on the reverse are part of this Debenture.
This Debenture is not entitled to any benefit under the Indenture nor is
this Debenture valid or obligatory for any purpose unless the certificate of
authentication below has been executed by the Trustee by manual signature.
This Debenture is not insured by the United States government, the State of
Washington nor any agency thereof.
In witness whereof, SFG Mortgage has caused this Debenture to be duly
executed under its corporate seal.
SFG MORTGAGE & INVESTMENT
COMPANY, INC.
(Corporate Seal)
By
------------------------
Authorized Officer
[INSERT TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
[FORM OF REVERSE OF INVESTMENT DEBENTURE, SERIES I]
8. TRANSFER AND EXCHANGE
Transfer and exchange of this Debenture are conditioned by certain
provisions in the Indenture. To effect a transfer, the Holder must surrender
this Debenture at SFG Mortgage's office or agency in Renton, Washington. This
Debenture must be duly endorsed or accompanied by a written instrument of
transfer satisfactory to SFG Mortgage. Upon transfer, one or more new
Debentures of the same series, of authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or
transferees. Prior to due presentment for registration of transfer, SFG
Mortgage, the Trustee or any of their agents may treat any Person in whose name
this Debenture is registered as the owner of this Debenture, regardless of
notice to the contrary or whether this Debenture might be overdue.
This Debenture is issuable only as a registered Debenture; it does not bear
coupons. As provided in the Indenture, this Debenture is exchangeable for other
Debentures of the same series of authorized denominations with the same
aggregate principal amount. To effect an exchange, the Holder must surrender
this Debenture at SFG Mortgage's office or agency in Renton, Washington. The
Debenture must be duly endorsed or accompanied by a written instrument of
exchange satisfactory to SFG Mortgage.
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No service charge will be made for a transfer or exchange, but SFG Mortgage
may require payment of a sum sufficient to cover any governmental charge payable
in connection with such transaction.
9. AMENDMENT OF THE INDENTURE; WAIVER OF RIGHTS
With certain exceptions, the Indenture may be amended, the obligations
and rights of SFG Mortgage may be modified and the rights of the
Debentureholders may be modified by Metrooolitan at any time with the consent
of the Holders of 66-2/3% in aggregate principal amount of the Debentures at
the time Outstanding. The Indenture allows the Holders of specified
percentages in aggregate principal amount of the Debentures of a particular
series to waive compliance by SFG Mortgage with certain Indenture provisions
and to waive past defaults and their consequences on behalf of all the
Holders of Debentures of that series. Any such consent or waiver by the
Holder of this Debenture will be binding upon that Holder. The consent or
waiver will also be binding upon all future Holders of this Debenture and of
any Debenture issued upon the transfer of, or in exchange for or in lieu of
this Debenture, whether or not that consent or waiver is noted upon the
Debenture.
10. FAILURE TO PAV INTEREST; EVENTS OF DEFAULT
If interest is not punctually paid or duly provided for, it shall cease to
be payable to the registered Holder of this Debenture on the applicable Regular
Record Date. Instead, the Trustee will fix a Special Record Date for payment of
the Defaulted Interest. The Trustee will give the Debentureholders notice of
the Special Record Date at least 10 days prior to the Special Record Date. The
Person in whose name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Special Record Date will be entitled
to payment of the Defaulted Interest. If the Debentures are listed on a
securities exchange, however, the Defaulted Interest may be paid at any time and
in any lawful manner consistent with the requirements of the exchange.
If an Event of Default occurs, the principal of all the Debentures may be
declared due and payable as provided in the Indenture.
11. FORM OF PAYMENT
Payment of principal and interest will be made at the office or agency of
SFG Mortgage maintained for that purpose in Renton, Washington. Payment will be
made in coin or currency of the United States of America that is legal tender
for payment of public and private debts at the time of payment. At SFG
Mortgage's option, however, payment of interest may be made by check mailed to
the Person entitled to the interest at that Person's address as it appears in
the Debenture Register.
12. BUSINESS DAYS
Whenever any Interest Payment Date, the Stated Maturity of this Debenture
or any date on which any Defaulted Interest is proposed to be paid is not a
Business Day, the appropriate payment
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or compounding of interest or principal may be made on the next succeeding
Business Day without accrual of additional interest.
13. CERTAIN DEFINITIONS
SFG Mortgage is a Washington corporation. The term "SFG Mortgage" includes
any successor corporation under the Indenture. The term "Trustee includes any
successor Trustee under the Indenture.
Section 2-3. FORM OF TRUSTEE'S CERTIFICATION OF AUTHENTICATION.
This is one of the Debentures referred to in the within mentioned
Indenture.
US BANK, as Trustee
By
-------------------------------
Authorized Officer
ARTICLE THREE
The Debentures
Section 3-1. GENERAL LIMITATIONS.
The aggregate principal amount of Debentures which may be authenticated and
delivered and Outstanding under this Indenture is not limited except as may be
limited by law.
Section 3-2. ISSUABLE IN SERIES; GENERAL TITLE.
The Debentures may be issued in series as from time to time shall be
authorized by the Board of Directors. The Debentures of all series shall be
entitled generally "Debentures." With respect to the Debentures of any
particular series, the Company may incorporate in or add to the general title of
such Debentures any words, letters or figures designed to distinguish that
series.
Section 3-3. TERMS OF PARTICULAR SERIES.
The Debentures of each series (other than Investment Debentures, Series I
as to which specific provision is made in Section 3-12) shall be payable at such
place or places, shall mature on such date or dates, shall bear interest at such
rate or rates payable in such installments and on such dates and at such place
or places and to Holders registered as such, and may be redeemable at such
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price or prices and upon such terms, all as shall be provided for in the
supplemental indenture creating that series.
The Company may at the time of the creation of any series of Debentures or
at any time thereafter make, and the Debentures of such series may contain,
provision for:
(1) the redemption of all, or of all or any part, of the Debentures of
such series prior to maturity;
(2) a sinking, amortization improvement or otheranalogous fund;
(3) limiting the aggregate principal amount of the Debentures of such
series;
(4) the exchange or conversion of the Debentures of that series, at the
option of the Holders thereof, for or into new Debentures of a different series
and/or shares of stock of the Company and/or other securities;
(5) exchanging Debentures of that series, at the option of the Holders
thereof, for other Debentures of the same series of the same aggregate principal
amount of a different authorized kind and/or authorized denomination or
denominations; and/or
(6) the appointment by the Trustee of an Authenticating Agent in one or
more places other than the location of the office of the Trustee with power to
act on behalf of the Trustee and subject to its direction in the authentication
and delivery of the Debentures of any one or more series in connection with such
transactions as shall be specified in the provisions of this Indenture creating
such series or in a supplemental indenture;
all upon such terms as the Board of Directors may determine. All Debentures of
the same series shall be substantially identical in tenor and effect.
Each series of Debentures, except Investment Debentures, Series I, shall be
created by an indenture supplemental hereto authorized by a Board Resolution.
Section 3-4. FORM AND DENOMINATIONS.
The Debentures of each series shall be in registered form and substantially
in the form hereinbefore recited for the Investment Debentures,, Series I,, with
such omissions, variations and insertions as are permitted by this Indenture,
and may have such letters, numbers or other marks of identification and such
legends or endorsements printed, lithographed or engraved thereon, as may be
required to comply with the rules of any securities exchange or to conform to
any usage in respect thereof, or as may, consistently- herewith, be prescribed
by the Board of Directors or by the officers executing such Debentures, such
determination by said officers to be evidenced by their signing the Debentures.
The form of the Debentures of each series (except Investment Debentures, Series
I) shall be established by the supplemental indenture creating such series. The
Debentures of each
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series shall be distinguished from the Debentures of other series in such manner
as may be prescribed in the supplemental indenture creating such series.
The definitive Debentures of each series other than Investment Debentures,
Series I shall be as required by the applicable supplemental indenture. The
definitive Investment Debentures, Series I shall be printed or prepared in a
manner to be determined by the officers executing such Debentures, as evidenced
by their execution of such Debentures.
The Debentures of each series shall be issued in such denominations as
shall be provided in the supplemental indenture creating such series or as the
Board of Directors may determine, except that the Investment Debentures, Series
I shall be issued in the denominations provided for in Section 3-12.
Section 3-5. EXECUTION, AUTHENTICATION AND DELIVERY AND DATING.
The Debentures shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents under its corporate
seal reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Debentures may be
manual or facsimile.
Debentures 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 Debentures or did not
hold such offices at the date of such Debentures.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debentures executed by the Company to the
Trustee for authentication; and the Trustee shall authenticate such Debentures
as in this Indenture provided and not otherwise, and shall deliver such
Debentures as authorized by the Company.
No Debenture shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears 'on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated hereunder
Section 3-6. TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate (and if so
authorized deliver), temporary Debentures which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Debentures in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the
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officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
If temporary Debentures of any series are issued, the Company will cause
definitive Debentures of such series to be prepared without unreasonable delay.
After the preparation of definitive Debentures, the temporary Debentures shall
be exchangeable for definitive Debentures upon surrender of the temporary
Debentures at the office or agency of the Company in a -Place of Payment,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Debentures the Company shall execute and the Trustee shall
authenticate in exchange therefor a like aggregate principal amount of
definitive Debentures of authorized denominations, which shall be delivered as
authorized by the Company. Until so exchanged the temporary Debentures shall in
all respects be entitled to the same benefits under this Indenture as definitive
Debentures.
Section 3-7. REGISTRATION TRANSFER AND EXCHANGE.
The Company shall cause to be kept at its office in Renton, Washington a
register (herein sometimes referred to as the "Debenture Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Debentures and for transfers of Debentures. The
Company will act as "Debenture Registrar" for the purpose of the registration of
Debentures and transfers of Debentures as herein provided.
Upon surrender for transfer of any Debenture of any series at the off ice
or agency of the Company in a Place of Payment, the Company shall execute, and
the Trustee shall authenticate, in the name of the designated transferee or
transferees, one or more new Debentures of the same series of any authorized
denominations, of a like aggregate principal amount, which shall be delivered as
authorized by the Company.
At the option of the Holder, Debentures may be exchanged for other
Debentures of the same series of any authorized denominations, of a like
aggregate principal amount, upon Surrender of the Debentures to be exchanged at
such office or agency. Whenever any Debentures are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate, the Debentures
the Debentureholder making the exchange is entitled to receive, which Debentures
shall be delivered as authorized by the Company.
All Debentures issued upon any transfer or exchange of Debentures shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Debentures surrendered upon such
transfer or exchange.
Every Debenture 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, as the
Debenture Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
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No service charge shall be made for any transfer or exchange of Debentures,
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 Debentures, other than exchanges pursuant to Section 3-6 or 9-6 not
involving any transfer.
The Company shall not be required (i) to issue, transfer or exchange any
Debenture 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 Debentures
selected for redemption under Section 11-4 and ending at the close of business
on the day of such mailing, or (ii) to transfer or exchange any Debenture so
selected for redemption in whole or in part.
Section 3-8. MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES.
If (i) any mutilated Debenture is surrendered to the Company, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debenture, and (ii) there is delivered to. the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Debenture has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Debenture, a new Debenture of like tenor and principal amount, bearing a number
not contemporaneously outstanding, which shall be delivered as authorized by the
Company.
In case any such mutilated, destroyed, lost or stolen Debenture has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture 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 Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall -preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures.
Section 3-9. PAYMENT OF INTEREST; INTEREST RIQHTS PRESERVED.
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Interest on any Debenture of any series which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Debentures of such
series shall be paid to the Person in whose name that Debenture (or one or more
Predecessor Debentures) is registered at the close of business on the Regular
Record Date for such interest in respect of Debentures of such series (unless
that Debenture, or one or more Predecessor Debentures, is called for redemption
on a date that is prior to such Interest Payment Date, in which case interest
shall be paid thereon as provided in Article Eleven or in the provisions with
respect to redemption or sinking fund contained in the supplemental indenture
creating the series of which that Debenture is a part).
Any interest on any Debenture which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for Debentures of such series
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Debentures (or their respective Predecessor
Debentures) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Debenture and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee .shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Debentureholder at his address as it appears in the Debenture Register,
not less than 10 days prior to such Special Record Date. The Trustee may, in
its discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper in each Place of
Payment for Debentures of such series, but such publication shall not be a
condition precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special -Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Debentures of such series (or their respective
Predecessor Debentures) are registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures of the series in respect of which interest is in default
may be listed, and upon such notice as may be
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required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Debenture shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Debenture.
Section 3-10. PERSONS DEEMED OWNERS.
Prior to due presentment for transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat any Person in whose name any
Debenture is registered as the owner of such Debenture for the purpose of
receiving payment of principal of and premium, if any, and (subject to Section
3-9) interest on, such Debenture and for all other purposes whatsoever, whether
or not such Debenture be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3-11. CANCELLATION.
All Debentures surrendered for payment, redemption, transfer, exchange or
conversion shall be promptly cancelled by the Company. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures cancelled as provided
in this Section, except as expressly permitted by this Indenture.
Section 3-12. INVESTMENT DEBENTURES, SERIES I.
There shall be an initial series of Debentures entitled "Investment
Debentures, Series I" and the form thereof shall be substantially as
hereinbefore recited. The aggregate principal amount of Investment Debentures,
Series I, at any one time Outstanding shall be limited to $25,000,000 exclusive
of Investment Debentures, Series I authenticated and delivered under Section
3-8. The initial Investment Debentures, Series I shall be issued in the
maturities and denominations with interest rates upon the unpaid principal
amounts thereof as follows provided, that for the first thirty (30) days of
the term of each debenture the interest rate shall be 4.0% per annum:
AMOUNT OF INVESTMENT TERM TO MATURITY ANNUAL INTEREST RATE
--------------------- ----------------- ---------------------
$2,000-$9,999 61 Months 7.0%
$10,000-$24,999 61 Months 8.0%
$25,000-$99,999 61 Months 8.35%
$100,000-$249,999 61 Months 8.65%
$250,000+ 61 Months 9.0%
The interest rates of Investment Debentures, Series I may be changed at any
time by the Company, but no such change will affect any Investment Debentures,
Series I issued prior to such change. Holders of Investment Debentures, Series
I, will receive interest payments quarterly or may elect to allow all or 50% of
the interest payable to be compounded and paid as set forth in
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paragraph 5 of the form of the Investment Debenture, Series I in Section 2-2.
Payment of the principal of and interest on Investment Debentures, Series I will
be made at the office or agency of the Company maintained for that purpose in
Renton, Washington. All such payments shall be made 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; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the address of the
Person entitled thereto as such address shall appear on the Debenture Register.
In the event of the death of any registered owner of an Investment Debenture,
Series I, any party entitled to receive some or all of the proceeds of such
Investment Debenture, Series I may elect to have his or her share of such
investment Debenture, Series I prepaid under the terms, conditions and
limitations set out in paragraph 4 of the form of the Investment Debenture,
Series I in Section 2-2 hereof.
ARTICLE FOUR
Satisfaction and Discharge
Section 4-1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion or transfer or exchange of Debentures herein
expressly provided for) , and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(1) either:
(A) all Debentures theretofore authenticated and delivered (other than
(i) Debentures which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3-8, and (ii) Debentures for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10-3) have been delivered to the Trustee
cancelled; or
(B) all such Debentures not theretofore delivered to the Trustee
cancelled
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within 1 year,
or
(iii) are to be called for redemption within 1 year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and the Company, in the
case of (i) , (ii) or (iii) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Debentures not theretofore
delivered to the Trustee cancelled, for principal and premium, if any, and
interest to the date of such deposit (in the case of
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Debentures which have become due and payable) , or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with; and
(4) the Company has delivered to the Trustee a statement that it does
not intend to authorize any further series of Debentures under this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6-7 shall survive.
Section 4-2. APPLICATION OF TRUST MONEY.
All money deposited with the Trustee pursuant to Section 4-1 shall be held
in trust and applied by it, in accordance with the provisions of the Debentures
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Company may
determine, to the Persons entitled thereto, of the principal and premium, if
any, and interest for-whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
Remedies
Section 5-1. EVENTS OF DEFAULT.
"Event of Default," with respect to the Investment Debentures, Series 1,
means any one of the events specified below in this Section 5-1 and "Event of
Default" with respect to each other series of Debentures shall mean such events
as are set forth in the supplemental indenture creating such series (in each
case 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):
(1) default in the payment of any interest upon any Investment
Debenture, Series I when such interest becomes due and payable, and continuance
of such default for a period of 30 days; or
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(2) default in the payment of the principal of (or premium, if any, on)
any Investment Debenture, Series I at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 10% in principal amount
of the Outstanding Investment Debentures, Series I, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a 'Notice of Default" hereunder; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under- the Federal Bankruptcy Act or any other
applicable Federal or State law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Act or
any other applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action.
Section 5-2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding "Applicable Debentures" (as hereinafter defined) may declare the
Applicable Debentures to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by the Holders of the Applicable
Debentures), and upon any such declaration the principal of, premium, if any,
and accrued interest on the Applicable Debentures to the extent not then already
due and payable shall become immediately due and payable. The term "Applicable
Debentures" shall mean the Investment Debentures, Series I in the case of an
Event of Default set forth in Section 5-1 and the Debentures of each other
series in the case of an Event of Default with respect to such series as
provided in any supplemental indenture relating to, the Debentures of such
series; but in no event shall the term "Applicable Debentures" include
Debentures of more than one series.
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At any time after such a declaration of acceleration has -been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of such Applicable Debentures outstanding, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay:
(A) all overdue installments of interest on such Applicable Debentures,
(B) the principal of and premium, if any, on such Applicable Debentures
which have become due otherwise than by such declaration of acceleration and
interest thereon at the respective rates borne by such Applicable Debentures,
(C) to the extent that payment of such interest is lawful, interest upon
overdue installments of interest at the respective rates borne by such
Applicable Debentures, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, in each case, with respect to such Applicable
Debentures;
and
(2) all Events of Default, other than the nonpayment of the principal of
such Applicable Debentures which have become due solely by such acceleration,
have been cured or waived as provided in Section 5-13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5-3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on any
Applicable Debenture when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Applicable Debenture at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it,' for the benefit of the
Holders of such Applicable Debentures, the whole amount then due and payable on
such, Applicable Debentures for principal and premium, if any, and interest,
with interest upon 'the overdue principal and premium,
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if any, and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate borne by the
Applicable Debentures; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amount 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, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Applicable Debentures and
collect the moneys adjudged or decreed to be payable in ' the manner provided by
law out of the property of the Company or any other obligor upon the Applicable
Debentures, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of such Applicable Debentures 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 the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Debentures
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the wh ole amount of principal and
premium, if any, and interest owing. and unpaid in respect of the Debentures and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including' any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Debentureholders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Debentureholder 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
Debentureholders, to pay the Trustee any amount due to it for the reasonable
compensation,
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expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 6-7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debentureholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Debentureholder in any such proceeding.
Section 5-5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBENTURES.
All rights of action and claims under this Indenture or the Debentures may
be prosecuted and enforced by the Trustee without the possession of any of the
Debentures or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debentures in respect of which such judgment has been
recovered.
Section 5-6. APPLICATION OF MONEY COLLECTED.
Any money collected or to be applied by the Trustee with respect to a
series of Debentures pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or premium, if any, or
interest, upon presentation of the Outstanding Debentures of such series and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of amounts due the Trustee under Section 6-7;
Second: To the payment of the amounts then due and unpaid upon the
Debentures of such series for principal and premium, if any, and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Debentures of such series for principal and premium, if
any, and interest, respectively.
Section 5-7. LIMITATION ON SUITS.
No Holder of any Applicable Debenture shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to Applicable Debentures of the same
series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Applicable Debentures 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;
(3) 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;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Applicable Debentures;
it being understood and intended that no one or more Holders of Debentures shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Debentures, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all the Holders of Debentures.
Section 5-8. UNCONDITIONAL RIGHT OF DEBENTUREHOLDERS TO RECEIVE PRINCIPAL;
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Debenture shall have the right which is absolute and unconditional to receive
payment of the principal of and premium, if any, and (subject to Section 3-9)
interest on such Debenture on the respective Stated Maturities expressed in such
Debenture (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 5-9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Debentureholder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Debentureholder, then and in every such case the Company,
the Trustee and the Debentureholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Debentureholders shall continue as though no such proceeding had been
instituted.
Section 5-10. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Debentureholders is intended to be exclusive of any other right or remedy,
and every right and
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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 or of any Holder of any Debenture 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 Debentureholders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Debentureholders,
as the case may be.
Section 5-12. CONTROL BY DEBENTUREHOLDERS.
The Holders of a majority in principal amount of the Outstanding Debentures
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 Debentures of
such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5-13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Debentures of any series may on behalf of the Holders of all the
Debentures of such series waive any past default hereunder and its consequences,
except a default
(1) in the payment of the principal of or premium, if any, or interest
on any Debenture of such series, or
2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
outstanding Debenture affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 5-14. UNDERTAKING FOR COSTS.
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All parties to this Indenture agree, and each Holder of any Debenture by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the .
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder or group of
Debentureholders, holding in the aggregate more than 10% in aggregate principal
amount of any series of Debentures, or to any suit instituted by any
Debentureholder for the enforcement of the payment of the principal of or
premium, if any, or interest on any Debenture on or after the respective Stated
Maturities expressed in such Debenture (or, in the case of redemption, on or
after the Redemption Date) .
Section 5-15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 6-1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture.
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(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act,, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Debentures of any
series relating to the time.. method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or Power conferred
upon the Trustee with respect to the Debentures Of such series, under this
Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not herein expressly so provided, every provision of this
Indenture relating to the conduct affecting the liability of or affording
protection to Trustee shall be subject to the provisions of this Section.
Section 6-2. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect
to a series of Debentures, the Trustee shall transmit by mail to all Holders of
Debentures of such series, as their names and addresses appear in the Debenture
Register, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of or premium, if any, or
interest on any Debenture of such series or in the payment of any sinking or
purchase fund installment due on such Debenture, the Trustee shall be protected
in withholding such notice if and so long as the Board of Directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of Debentures of such series; and
provided, further, that in the case of any default of the
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character specified in Section 5-1(3) no such notice to such 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
Debentures of such series.
Section 6-3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6-1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture 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;
(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 Debentureholders pursuant to this Indenture, unless such
Debentureholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which 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 or
other paper or document, but the Trustee, in its discretion,, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(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.
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Section 6-4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBENTURES.
The recitals contained herein and in the Debentures, except the
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Debentures. The Trustee shall not be accountable for the use or
application by the Company of Debentures or the proceeds thereof.
Section 6-5. MAY HOLD DEBENTURES.
The Trustee, any Paying Agent, Debenture Registrar or any other agent of
the Company, in its individual or -any other capacity, may become the ' owner or
pledgee of Debentures and, subject to Sections 6-8 and 6-13 hereof in the case
of the Trustee, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Debenture 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.
Section 6-7. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) , except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust,, including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of its powers
or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Debentures upon all
property and funds held or collected by the
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Trustee as such, except funds held in trust for the payment of principal of and
premium, if any, or interest on Debentures.
Section 6-8. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, it shall, within 90 days after ascertaining that it has
such conflicting interest, either eliminate such conflicting interest or resign
in the manner and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section the Trustee shall, within 10 days
after the expiration of such 90-day period, transmit by mail to all
Debentureholders, as their names and addresses appear in the Debenture Register,
notice of such failure.
(c) For the purpose of this Section, the Trustee shall be deemed to have
a conflicting interest if:
(1) the Trustee is trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
Securities, of the Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Debentures issued under this Indenture, provided that there shall be excluded
from the operation of this paragraph any indenture or indentures under which
other securities, or certificates of interest or Participation in other
securities, of the Company are outstanding, if:
(i) this Indenture and such other indenture or indentures are wholly
unsecured and such other indenture or indentures are hereafter qualified under
TIA, unless the Commission shall have found and declared by order pursuant to
Section 305(b) or Section 307(c) of TIA that differences exist between the
provisions of this Indenture and the provisions of such other indenture or
indentures which are so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture and such other
indenture or indentures, or the company shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture and such other indenture or
indentures is not so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under one of such indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Debentures or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with the
Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner,
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employee, appointee or representative of the Company, or of an underwriter
(other than the Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (i) one individual may be a director or an
executive officer, or both, of the Trustee and a director or an executive
officer, or both, of the Company but may not be at the same time an executive
officer of both the Trustee and the Company; (ii) if and so long as the number
of directors of the Trustee in office is more than nine, one additional
individual may be a director or an executive officer, or both, of the Trustee
and a director of the Company; and (iii) the Trustee may be designated by the
Company or by any underwriter for the Company to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary, or in any other similar capacity, or, subject to the provisions of
paragraph (1) of this Subsection, to act as trustee, whether under an indenture
or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially
owned either by the Company or by any director, partner, or executive officer
thereof, or 20% or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an underwriter for the
Company or by any director, partner or executive officer thereof, or is
beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial- owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% (5r more of the voting securities, or 10% or more of
any other class of security, of the Company not including the Debentures issued
under this Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who, to
the knowledge of the Trustee, owns 10% or more of the voting securities of, or
controls directly or indirectly or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined) , 10% or more of any class of security of any person who, to
the knowledge of the Trustee owns 50% or more of the voting securities of the
Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of 25%
or more of the voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraphs (6) , (7) or (8) of this
Subsection. As to any such securities of which the Trustee acquired ownership
through becoming executor, administrator, or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall not apply,
for a period of two years from the date of such acquisition, to the extent that
such securities included
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in such estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after May 15 in each calendar year, the Trustee
shall make a check. of its holdings of such securities in any of the
above-mentioned capacities as of such May 15. If the Company fails to make
payment in full of the principal of, or the premium, if any, or interest on, any
of the Debentures when and as the same becomes due and payable, and such failure
continue's for 30 days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any bf the above-mentioned capacities as of the
date of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all such securities
so held by the Trustee, with sole or joint control over such securities vested
in it, shall, but only so long as such failure shall continue, be considered as
though beneficially owned by the Trustee for the purposes of paragraphs (6), (7)
and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9) inclusive, of
this Subsection, shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of paragraph (3) or
(7) of this Subsection.
For the purposes of paragraphs (6) (7) (8) and (9) of this Subsection only,
(i) the terms "security' and n securities" shall include only such securities as
are generally known as corporate securities, but shall not include any note or
other evidence of indebtedness issued to evidence an obligation to repay moneys
lent to a person by one or more banks, trust companies or banking firms, or any
certificate of interest or participation in any such note or evidence of
indebtedness; (ii) an obligation shall be deemed to be 'in default' when a
default in payment of principal shall have continued for 30 days or more and
shall not have been cured; and (iii) the Trustee shall not be deemed to be the
owner or holder of (A) any security which it holds as collateral security, as
trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent, or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter when used with reference to the Company means
every person who, within three (3) years prior to the time as of which the
determination is made, has purchased from the Company with a view to, or has
offered or sold for the Company in connection with, the distribution of any
security of the Company outstanding at such time, or has participated or has had
a direct or indirect participation in any such undertaking, or has participated
or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited
to a commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation, or any
individual performing similar functions with respect to any organization whether
incorporated or unincorporated.
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(3) The term "Person" means an individual, a corporation, a partnership,
an association, a joint-stock company, a trust, an unincorporated organization,
or a government or political subdivision thereof. As used in this paragraph,
the term "trust" shall include only a trust where the interest or interests of
the beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Debentures.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary, and the treasurer of
a corporation, and any individual customarily performing similar functions with
respect to any organization whether incorporated or unincorporated, and shall
include the chairman of the board of directors.
(e) The percentages of voting securities and other securities specified
in this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the Trustee, the
Company or any other person referred to in this Section (each of whom is
referred to as a "Person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person are entitled to
cast in the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class outstanding.
(3) The term "amount," when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of shares
if relating to capital shares, and the number of units if relating to any other
kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed outstanding
within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to another
class of securities of the issuer, if the obligation evidenced by such other
class of securities is not in default as to principal or interest or otherwise;
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(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in the
case of secured evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such series
different classes and provided, further, that, in the case of unsecured
evidences of indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities of
different classes, whether or not they are issued under a single indenture.
Section 6-9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 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 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.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Debentures, delivered to the
Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 6-8(a) after written
request therefor by the Company or by any Debentureholder who has been a bona
fide Holder of a Debenture for at least 6 months, or
(2) 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
Debentureholder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5-14, any Debentureholder who has been a
bona fide Holder of a Debenture for at least 6 months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(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, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. if,
within 1 year after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee shall be appointed by Act of the Holders of
a majority in principal amount of the outstanding Debentures 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
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Debentureholders and
accepted appointment in the manner hereinafter provided, any Debentureholder who
has been a bona fide Holder of a Debenture for at least 6 months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Debentures as their names and addresses appear in the Debenture Register. Each
notice shall include the name of the successor Trustee and the address of its
principal corporate trust office.
Section 6-11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder 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
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and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 6-7. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
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, to the extent operative, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Debentures 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 Debentures
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Debentures.
Section 6-13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within 4 months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Debentures and the
holders of other indenture securities (as defined in Subsection (c) of this
Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four (4) months' period and valid as
against the Company and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in paragraph (2) of
this Subsection, or from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been filed by or against
the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as such
creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such four (4) months' period or an
amount equal to the proceeds of any such property, if disposed
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of, subject, however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon, and
(ii) the proceeds of the bona fide sale of any such claim by the Trustee to a
third person and (iii) distributions made in cash, securities or other property
in respect of claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the beginning
of such four (4) months' period;
(C) to realize, for its own account, but only to the extent of the claim
hereinafter mentioned, upon any property held by it as security for any such
claim, if such claim was created after the beginning of such four (4) months'
period and such property was received as security therefor simultaneously with
the creation thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no reasonable
cause to believe that a default as defined in Subsection (c) of this Section
would occur within 4 months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C),
against the release of any property held as security for such claim as provided
in paragraph (B) or (C) , as the case may be, to the extent of the fair value of
such property.
For the purposes of paragraphs (B) , (C) and (D) , property substituted
after the beginning of such four (4) months' period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Debentureholders and the holders of other indenture securities in
such manner that the Trustee, the Debentureholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Debentureholders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or applicable State
law, but after crediting thereon receipts on account of the indebt-
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edness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, whether such distribution is
made in cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion between
the Trustee and the Debentureholders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds
and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Debentureholders and the
holders of other indenture securities with respect to their respective
claims, in which event it shall not be necessary to liquidate or to appraise
the value of any securities or other property held in such special account or
as security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning of such
4 months' period shall be subject to the provisions of this Subsection as though
such resignation or removal had not occurred. If any Trustee has resigned or
been removed prior to the beginning of such 4 months' period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four (4) months'. period; and
(ii) such receipt of property or reduction of claim occurred within 4
months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or more
at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving any
property which shall at any time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances thereon, if notice of
such advances and of the circumstances surrounding the making thereof is given
to the Debentureholders at the time and in the manner provided in this
Indenture;
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(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar, custodian,
paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered qr premises
rented; or an indebtedness created as a result of goods or securities sold in a
cash transaction as defined in Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 15(a) of the Federal Reserve Act, as
amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any drafts,
bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in Subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of the
principal of or interest on any of the Debentures or upon the other indenture
securities when and as such principal or interest becomes due and payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under which
the Trustee is also trustee, (ii) which contains provisions substantially
similar to the provisions of this Section, and (iii) under which a default
exists at the time of the apportionment of the funds and property held in such
special account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within 7 days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand.
(4) The term "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
(5) The term "Company" means any obligor upon the Debentures.
ARTICLE SEVEN
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Debentureholders Lists and Reports by Trustee and Company
Section 7-1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
DEBENTUREHOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, on or before each April 15 and October 15, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders of Debentures as of the preceding March 31 and September 30,
respectively, 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.
Section 7-2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
DEBENTUREHOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Debentures of each series
received by the Trustee as provided in Section 7-1. The Trustee may destroy any
list furnished to it as provided in Section 7-1 upon receipt of a new list so
furnished.
(b) If three (3) or more Holders of Debentures of a series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Debenture of the
stated series for a period of at least 6 months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Debentures of such series or of all series
with respect to their rights under this Indenture or under the appropriate
Debentures and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within 5 Business Days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7-2(a), or
(ii) inform such applicants as to the approximate number of Holders of
Debentures whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 7-2(a), and as to the approximate
cost of mailing to such Debentureholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Debentureholder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 7-2 (a) , a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five (5) days after
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such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Debentures or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Debentureholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Debentures, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Debentures in accordance with
Section 7-2(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 7-2 (b) .
Section 7-3. REPORTS BY TRUSTEE.
(a) The term "reporting date", as used in this Section, means the first
day of the tenth calendar month following the date of this Indenture and the
same day in every year thereafter so long as any Debentures of any series are
outstanding hereunder. Within 60 days after the reporting date in each year,
the Trustee shall transmit by mail to all Holders of a given series of
Debentures, as their names and addresses' appear in the Debenture Register, a
brief report dated as of such reporting date with respect to:
(1) its eligibility under Section 6-9 and its qualifications under
Section 6-8, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written statement
to such effect;
(2) the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debentures of any series, on any property or funds held or collected by it
as Trustee, except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Debentures of such series
outstanding on the date of such report;
(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the Debentures) to
the Trustee in its individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor,
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except an indebtedness based upon a creditor relationship arising in any manner
described in Section 6-13(b) (2) (3) (4) or (6);
(4) the property and funds, if any, physically in the possession of the
Trustee (as such) on the date of such report;
(5) any additional issue of Debentures of any series which the Trustee
has not previously reported; and
(6) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Debentures of any series, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 6-2.
(b) The Trustee shall transmit by mail to all Debentureholders, as their
names and addresses appear in the Debenture Register, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
Subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debentures of any series, on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this Subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 10% or less of
the principal amount of the Debentures of any series Outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission
to Debentureholders, be filed by the Trustee with each stock exchange upon which
the Debentures are listed, and also with the Commission. The Company will
notify the Trustee when the Debentures are listed on any stock exchange.
Section 7-4. REPORTS BY THE COMPANY.
The Company will:
(1) file with the Trustee, within fifteen (15) days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15 (d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act
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of 1934 in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Debentureholders, as their names and
addresses appear in the Debenture Register, within thirty (30) days after the
filing thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8-1. COMPANY MAY CONSOLIDATE, MERGER, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and premium,, if any, and interest on all the Debentures and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default; shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 8-2. SUCCESSOR CORPORATION SUBSTITUTED.
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Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section B-1, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein; provided, however, that no
such conveyance or transfer shall have the effect of releasing the Person named
as the "Company' in the first paragraph of this Indenture or any successor
corporation which shall theretofore have become such in the manner prescribed in
this Article from its liability as obligor and maker on any of the Debentures.
ARTICLE NINE
Supplemental Indentures
Section 9-1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF DEBENTUREHOLDERS.
(a) Without the consent of the Holders of any Debentures, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company herein
and in the Debentures contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of the Debentures or any series thereof, or to surrender any right or
power herein conferred upon the Company; or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this Indenture,
provided such action shall not adversely affect the interest of the Holders of
the Debentures or any series thereof; or
(4) to provide for the creation of any series of Debentures (other than
Investment Debentures of Series I) as provided in Article Three.
(b) It shall not be necessary to obtain any consent from the Trustee
with regard to any action taken pursuant to this Section, but the Trustee shall
execute any instrument requested in a Company Request for the purpose of
confirming such action, upon receipt by the Trustee of an Officers' Certificate
and an Opinion of Counsel, each stating that the Company was authorized by this
indenture to take the action taken by it and that the execution of such
instrument is appropriate to confirm such action, provided, however, that the
Trustee shall have no obligation to execute any
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supplemental indenture the purpose of which is to create a series of Debentures
other than Investment Debentures, Series I unless all the terms and conditions
applicable to such series of Debentures affecting the rights, compensation, and
duties of the Trustee shall be satisfactory to the Trustee.
Section 9-2. SUPPLEMENTAL INDENTURES WITH CONSENT OF DEBENTUREHOLDERS.
With the consent of the Holders of not less than 66-2/3% in principal
amount of the Outstanding Debentures, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of the Debentures under this Indenture; provided, however, if
such additional, changed or eliminated provision applies only to a particular
series of Debentures, or the rights of the Holders of only a particular series
would be modified, the consent of 66-2/3% in principal amount of Outstanding
Debentures of only such series shall be required; and provided, further, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debenture affected thereby,
(l) change the Stated Maturity of the principal of, or any installment of
interest on, any Debenture, or reduce the principal amount thereof or the
interest thereon or any premium payable upon the redemption thereof, or change
any Place of Payment where, or the coin or currency in which, any Debenture or
the interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding.
Debentures, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 5-13, except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each Debenture affected thereby.
It shall not be necessary for any Act of Debentureholders 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 (subject to Section 6-1) shall be fully protected in relying
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upon, and 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 which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 9-4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debentures 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 TIA as then in effect.
Section 9-6. REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES.
Debentures 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 Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated by the Trustee in exchange for
Outstanding Debentures, and be delivered as authorized by the Company.
ARTICLE TEN
Covenants
Section 10-1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of and premium, if
any, and interest on each series of Debentures in accordance with the terms of
each such series and this Indenture.
Section 10-2. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain an office or agency in the Place of Payment for
Debentures of each series where Debentures of such series may be presented or
surrendered for payment, where
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Debentures may be surrendered for transfer or exchange and where notices and
demands to or upon the Company in respect of such Debentures and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and of any change in the location, of such office or agency. If
at any time the Company 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 principal corporate
trust office of the Trustee, and the Company hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
Section 10-3. MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of and premium, if any, or interest on,
any of the Debentures, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal, premium, if any,
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly. notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of and premium, if any, or interest on, any
Debentures, deposit with a Paying Agent a sum sufficient to pay the principal,
premium, if any, or interest, so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee 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:
(1) hold all sums held by it for the payment of principal of, premium,
if any, or interest on Debentures in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Debentures) in the making of any such payment of principal,
premium, if any, or interest; and
(3) at anytime during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or 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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Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Debenture and remaining unclaimed for 6 years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Debenture shall thereafter,
as an unsecured general creditor, -look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment of such
Debenture, 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.
Section 10-4. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon it or upon its income, profits or property, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon its property; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
Section 10-5. MAINTENANCE OF PROPERTIES.
The Company will cause all its properties used or useful in the conduct of
its business to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation and maintenance of any of its
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business and not disadvantageous in any material respect
to the Debentureholders.
Section 10-6. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement signed by the Chairman of the Board,
President or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller or an Assistant Controller of the- Company, stating, as to each
signer thereof, that
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(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, the Company has
fulfilled all its obligations under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to him and the nature and status thereof.
Section 10-7. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Debentureholders.
Section 10-8. BORROWINGS.
The Company may from time to time, in order to further its business, borrow
monies from third parties. The total amount of any loans or other financing
arrangements (the "borrowings") may not exceed thirty-five percent (35%) of the
total principal amount due under the issued and outstanding Debentures at the
time each borrowing is obtained by the Company. In order to secure these
borrowings the Company may agree to pledge some or all of its assets and/or
subordinate payment of the Debentures to payments due to the lenders under the
borrowing arrangements. The Trustee shall have the power to and shall be
obligated to take all actions reasonably necessary to assist the Company in
securing such borrowings, including executing collateral assignment agreements
and subordination agreements related to the Debentures, as may be required by a
lender.
ARTICLE ELEVEN
Redemption of Debentures
Section 11-1. RIGHT OF REDEMPTION.
Notwithstanding anything to the contrary herein contained, the Investment
Debentures, Series I are not redeemable prior to Maturity; the Company may,
however, pay principal and premium, if any, and interest on such Debentures
either upon mutual agreement between the Holders of an Investment Debenture,
Series I and the Company or as provided in this Indenture in the event of the
death of any registered owner or any registered joint owner without such payment
constituting a redemption. The Debentures of each other series, if redeemable,
shall be redeemable on a pro rata basis or by lot or otherwise as set forth in
the supplemental indenture creating such series.
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Section 11-2. APPLICABILITY OF ARTICLE.
Redemption of Debentures at the election of the Company or otherwise as
permitted or required by any provision of this Indenture or any supple ' mental
indenture, shall be made in accordance with such provision and this Article.
Section 11-3. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Debentures shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
the Debentures of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date, the Redemption Price and the principal amount of Debentures to be redeemed
and the series thereof.
Section 11-4. SELECTION BY TRUSTEE OF DEBENTURES TO BE REDEEMED.
If less than all the Debentures of any series are to be redeemed, otherwise
than on a pro rata basis, the particular Debentures to be redeemed shall be
selected not more than 45 days prior to the Redemption Date by the Trustee, from
the Outstanding Debentures of such series not previously called for redemption,
by lot or by such other method as the Trustee shall deem fair and appropriate
and which may provide for the redemption of portions of the principal of
Debentures of a denomination larger than $1,000 or the smallest authorized
denomination of the Debentures, whichever is greater, or an integral multiple
thereof. If redemption is to be other than on a pro rata basis, the Trustee
shall promptly notify the Company in writing of the Debentures selected for
redemption and, in the case of any Debenture 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 Debentures shall relate,, in the
case of any Debenture redeemed or to be redeemed only in part, to the portion of
the principal of such Debenture which has been or is to be redeemed.
Section 11-5. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Debentures to be redeemed, at his address appearing in the
Debenture Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all Outstanding Debentures of. any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Debentures to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Debenture, and that interest thereon shall cease to
accrue from and after said date, and
(5) the place where such Debentures are to be surrendered for payment of
the Redemption Price, which shall be the of f ice or agency of the Company in
each Place of Payment for the Debentures of the series being redeemed.
Notice of redemption of Debentures 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.
Section 11-6. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10-3) an amount of money
sufficient to pay the Redemption Price of all the Debentures which are to be
redeemed on that date.
Section 11-7. DEBENTURES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Debentures so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Debentures
shall cease to bear interest. upon surrender of such Debentures for redemption
in accordance with said notice, such Debentures shall be paid by the Company at
the Redemption Price. Installments of interest the Stated Maturity of which is
on or prior to the Redemption Date shall be payable to the Holders of such
Debentures registered as such on the relevant Record Dates according to the
terms of such Debentures and the provisions of Section 3-9.
If any Debenture called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and premium, if any, shall, until paid,
bear interest from the Redemption Date at the rate borne by the Debenture.
Section 11-8. DEBENTURES REDEEMED IN PART.
Any Debenture of any series which is to be redeemed only in part shall be
surrendered at a Place of Payment for Debentures of such series (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
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Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Debenture without service charge, a new Debenture or Debentures
of the same series, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Debenture so surrendered.
IN WITNESS WHEREOF, SFG MORTGAGE & INVESTMENT COMPANY, INC. has caused this
Indenture to be signed in its corporate name by its Chairman of the Board, its
President or a Vice President and its corporate seal to be affixed hereunto, and
the same to be attested by the signature of its Secretary or an Assistant
Secretary; and US BANK, in evidence of its acceptance of the trust hereby
created, has caused this Indenture to be signed in its corporate name by one of
its Corporate Trust Officers, and its corporate seal to be affixed hereunto, and
the same to be attested by one of its Corporate Trust Officers.
Executed and delivered as of the date first Above written.
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