<DOCUMENT>
<TYPE>EX-4
<SEQUENCE>7
<FILENAME>ex4aj.txt
<DESCRIPTION>EX. 4(AJ) - FORM OF SUBORDINATED INDENTURE
<TEXT>
EXHIBIT 4(aj)
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FPL GROUP CAPITAL INC,
ISSUER
AND
FPL GROUP, INC.,
GUARANTOR
TO
THE BANK OF NEW YORK,
TRUSTEE
---------
INDENTURE
(FOR UNSECURED SUBORDINATED DEBT SECURITIES
RELATING TO TRUST SECURITIES)
DATED AS OF ________, 200__
-----------------------------------------------------
<PAGE>
TABLE OF CONTENTS
RECITAL OF THE COMPANY.........................................................1
RECITAL OF THE GUARANTOR.......................................................1
ARTICLE ONE Definitions And Other Provisions Of General Application............1
SECTION 101. Definitions................................................1
"Act"......................................................2
"Additional Interest"......................................2
"Affiliate"................................................2
"Authenticating Agent".....................................2
"Authorized Officer".......................................2
"Board of Directors".......................................2
"Board Resolution".........................................2
"Business Day".............................................3
"Commission"...............................................3
"Common Securities"........................................3
"Company"..................................................3
"Company Request" or "Company Order".......................3
"Corporate Trust Office"...................................3
"Corporation"..............................................3
"Defaulted Interest".......................................3
"Discount Security"........................................3
"Dollar" or "$"............................................3
"Eligible Obligations".....................................3
"Event of Default".........................................3
"Exchange Act".............................................3
"Governmental Authority"...................................4
"Government Obligations"...................................4
"Guarantee"................................................4
"Guarantor"................................................4
"Guarantor Order " or "Guarantor Request"..................4
"Holder"...................................................4
"Indenture"................................................4
"Interest Payment Date"....................................4
"Maturity".................................................4
"Notice of Default"........................................5
"Officer's Certificate"....................................5
"Opinion of Counsel".......................................5
"Outstanding"..............................................5
"Paying Agent".............................................6
"Periodic Offering"........................................6
"Person"...................................................6
"Place of Payment".........................................6
"Predecessor Security".....................................6
"Preferred Securities".....................................6
"Redemption Date"..........................................6
<PAGE>
"Redemption Price".........................................7
"Regular Record Date"......................................7
"Required Currency"........................................7
"Responsible Officer"......................................7
"Securities"...............................................7
"Securities Act"...........................................7
"Security Register" and "Security Registrar"...............7
"Senior Indebtedness"......................................7
"Special Record Date"......................................8
"Stated Interest Rate".....................................8
"Stated Maturity"..........................................8
"Tranche"..................................................8
"Trust"....................................................8
"Trust Agreement"..........................................8
"Trust Indenture Act"......................................8
"Trust Securities Guarantee"...............................8
"Trustee"..................................................8
"United States"............................................9
SECTION 102. Compliance Certificates and Opinions.......................9
SECTION 103. Form of Documents Delivered to Trustee.....................9
SECTION 104. Acts of Holders...........................................10
SECTION 105. Notices, Etc. to Trustee, Company and Guarantor...........11
SECTION 106. Notice to Holders of Securities; Waiver...................12
SECTION 107. Conflict with Trust Indenture Act.........................13
SECTION 108. Effect of Headings and Table of Contents..................13
SECTION 109. Successors and Assigns....................................13
SECTION 110. Separability Clause.......................................13
SECTION 111. Benefits of Indenture.....................................13
SECTION 112. Governing Law.............................................13
SECTION 113. Legal Holidays............................................14
ARTICLE TWO Security Forms....................................................14
SECTION 201. Forms Generally...........................................14
SECTION 202. Form of Trustee's Certificate of Authentication...........14
ARTICLE THREE The Securities..................................................15
SECTION 301. Amount Unlimited; Issuable in Series......................15
SECTION 302. Denominations.............................................18
SECTION 303. Execution, Authentication, Delivery and Dating............18
SECTION 304. Temporary Securities......................................21
SECTION 305. Registration, Registration of Transfer and Exchange.......22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........23
SECTION 307. Payment of Interest; Interest Rights Preserved............23
SECTION 308. Persons Deemed Owners.....................................24
SECTION 309. Cancellation by Security Registrar........................25
SECTION 310. Computation of Interest...................................25
SECTION 311. Payment to Be in Proper Currency..........................25
SECTION 312. Extension of Interest Payment.............................25
SECTION 313. Additional Interest.......................................26
<PAGE>
ARTICLE FOUR Redemption Of Securities.........................................26
SECTION 401. Applicability of Article..................................26
SECTION 402. Election to Redeem; Notice to Trustee.....................26
SECTION 403. Selection of Securities to Be Redeemed....................26
SECTION 404. Notice of Redemption......................................27
SECTION 405. Securities Payable on Redemption Date.....................28
SECTION 406. Securities Redeemed in Part...............................28
ARTICLE FIVE Sinking Funds....................................................29
SECTION 501. Applicability of Article..................................29
SECTION 502. Satisfaction of Sinking Fund Payments with Securities.....29
SECTION 503. Redemption of Securities for Sinking Fund.................29
ARTICLE SIX Covenants.........................................................30
SECTION 601. Payment of Principal, Premium and Interest................30
SECTION 602. Maintenance of Office or Agency...........................30
SECTION 603. Money for Securities Payments to Be Held in Trust.........31
SECTION 604. Corporate Existence.......................................32
SECTION 605. Maintenance of Properties.................................32
SECTION 606. Annual Officer's Certificate as to Compliance.............32
SECTION 607. Waiver of Certain Covenants...............................32
SECTION 608. Restrictions on Dividends and Debt Payments...............33
SECTION 609. Maintenance of Trust Existence............................34
SECTION 610. Rights of Holders of Preferred Securities.................34
ARTICLE SEVEN Satisfaction And Discharge......................................34
SECTION 701. Satisfaction and Discharge of Securities..................34
SECTION 702. Satisfaction and Discharge of Indenture...................36
SECTION 703. Application of Trust Money................................37
ARTICLE EIGHT Events Of Default; Remedies.....................................38
SECTION 801. Events of Default.........................................38
SECTION 802. Acceleration of Maturity; Rescission and Annulment........39
SECTION 803. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................40
SECTION 804. Trustee May File Proofs of Claim..........................41
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities................................................41
SECTION 806. Application of Money Collected............................41
SECTION 807. Limitation on Suits.......................................42
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest......................................42
SECTION 809. Restoration of Rights and Remedies........................43
SECTION 810. Rights and Remedies Cumulative............................43
SECTION 811. Delay or Omission Not Waiver..............................43
SECTION 812. Control by Holders of Securities..........................43
SECTION 813. Waiver of Past Defaults...................................44
SECTION 814. Undertaking for Costs.....................................44
<PAGE>
SECTION 815. Waiver of Usury, Stay or Extension Laws...................44
ARTICLE NINE The Trustee......................................................45
SECTION 901. Certain Duties and Responsibilities.......................45
SECTION 902. Notice of Defaults........................................46
SECTION 903. Certain Rights of Trustee.................................46
SECTION 904. Not Responsible for Recitals or Issuance of Securities....47
SECTION 905. May Hold Securities.......................................47
SECTION 906. Money Held in Trust.......................................47
SECTION 907. Compensation and Reimbursement............................48
SECTION 908. Disqualification; Conflicting Interests...................48
SECTION 909. Corporate Trustee Required; Eligibility...................49
SECTION 910. Resignation and Removal; Appointment of Successor.........49
SECTION 911. Acceptance of Appointment by Successor....................51
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business..................................................52
SECTION 913. Preferential Collection of Claims Against Company.........52
SECTION 914. Co-trustees and Separate Trustees.........................52
SECTION 915. Appointment of Authenticating Agent.......................53
ARTICLE TEN Holders' Lists And Reports By Trustee. Company and Guarantor......55
SECTION 1001. Lists of Holders..........................................55
SECTION 1002. Reports by Trustee, Company and Guarantor.................55
ARTICLE ELEVEN Consolidation, Merger, Conveyance Or Other Transfer............56
SECTION 1101. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms.............................................56
SECTION 1102. Successor Entity Substituted..............................56
SECTION 1103. Limitation................................................56
ARTICLE TWELVE Supplemental Indentures........................................57
SECTION 1201. Supplemental Indentures Without Consent of Holders........57
SECTION 1202. Supplemental Indentures With Consent of Holders...........59
SECTION 1203. Execution of Supplemental Indentures......................60
SECTION 1204. Effect of Supplemental Indentures.........................60
SECTION 1205. Conformity With Trust Indenture Act.......................60
SECTION 1206. Reference in Securities to Supplemental Indentures........60
SECTION 1207. Modification Without Supplemental Indenture...............61
ARTICLE THIRTEEN Meetings Of Holders; Action Without Meeting..................61
SECTION 1301. Purposes for Which Meetings May Be Called.................61
SECTION 1302. Call, Notice and Place of Meetings........................61
SECTION 1303. Persons Entitled to Vote at Meetings......................62
SECTION 1304. Quorum; Action............................................62
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.......................63
SECTION 1306. Counting Votes and Recording Action of Meetings...........63
SECTION 1307. Action Without Meeting....................................64
<PAGE>
ARTICLE FOURTEEN Guarantee....................................................64
SECTION 1401. Guarantee.................................................64
SECTION 1402. Guarantee Subordinate to Senior Indebtedness of the
Guarantor.................................................65
SECTION 1403. Payment Over of Proceeds of Securities....................66
SECTION 1404. Disputes with Holders of Certain Senior Indebtedness
of the Guarantor..........................................67
SECTION 1405. Subrogation...............................................67
SECTION 1406. Obligation of the Guarantor Unconditional.................68
SECTION 1407. Priority of Senior Indebtedness of the Guarantor
Upon Maturity.............................................69
SECTION 1408. Trustee as Holder of Senior Indebtedness of the
Guarantor.................................................69
SECTION 1409. Notice to Trustee to Effectuate Subordination.............69
SECTION 1410. Modification, Extension, etc. of Senior Indebtedness of
the Guarantor.............................................69
SECTION 1411. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness of the Guarantor.............................70
SECTION 1412. Paying Agents Other Than the Trustee......................70
SECTION 1413. Rights of Holders of Senior Indebtedness of the Guarantor
Not Impaired..............................................70
SECTION 1414. Effect of Subordination Provisions; Termination...........70
SECTION 1415. Execution and Delivery of Guarantee.......................70
ARTICLE FIFTEEN Subordination Of Securities...................................71
SECTION 1501. Securities Subordinate to Senior Indebtedness of the
Company...................................................71
SECTION 1502. Payment Over of Proceeds of Securities....................71
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness of
the Company...............................................73
SECTION 1504. Subrogation...............................................73
SECTION 1505. Obligation of the Company Unconditional...................73
SECTION 1506. Priority of Senior Indebtedness of the Company Upon
Maturity..................................................74
SECTION 1507. Trustee as Holder of Senior Indebtedness of the Company...74
SECTION 1508. Notice to Trustee to Effectuate Subordination.............74
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness of
the Company...............................................75
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness of the Company...............................75
SECTION 1511. Paying Agents Other Than the Trustee......................75
SECTION 1512. Rights of Holders of Senior Indebtedness of the Company
Not Impaired..............................................75
SECTION 1513. Effect of Subordination Provisions; Termination...........76
ARTICLE SIXTEEN Immunity Of Incorporators, Stockholders, Officers And
Directors.............................................................76
SECTION 1601. Liability Solely Corporate................................76
<PAGE>
FPL GROUP CAPITAL INC
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ___________, 200__
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310 (a)(1)................................................ 909
(a)(2)................................................ 909
(a)(3)................................................ 914(b)
(a)(4)................................................ Not Applicable
(b) ................................................. 908
................................................. 910
ss.311 (a) ................................................. 913
(b) ................................................. 913
(c) ................................................. 913
ss.312 (a) ................................................. 1001
(b) ................................................. 1001
(c) ................................................. 1001
ss.313 (a) ................................................. 1002
(b) ................................................. 1002
(c) ................................................. 1002
(d) ................................................. 1002
ss.314 (a) ................................................. 1002
(a)(4)................................................ 606
(b) ................................................. Not Applicable
(c)(1)................................................ 102
(c)(2)................................................ 102
(c)(3)................................................ Not Applicable
(d) ................................................. Not Applicable
(e) ................................................. 102
ss.315 (a) ................................................. 901
................................................. 903
(b) ................................................. 902
(c) ................................................. 901
(d) ................................................. 901
(e) ................................................. 814
ss.316 (a) ................................................. 812
................................................. 813
(a)(1)(A)............................................. 802
................................................. 812
(a)(1)(B)............................................. 813
(a)(2)................................................ Not Applicable
(b) ................................................. 808
ss.317 (a)(1)................................................ 803
(a)(2)................................................ 804
(b) ................................................. 603
ss.318 (a) ................................................. 107
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
SUBORDINATED INDENTURE, dated as of __________, 200_ among FPL GROUP
CAPITAL INC, a corporation duly organized and existing under the laws of the
State of Florida (herein called the "Company"), having its principal office at
700 Universe Boulevard, Juno Beach, Florida 33408, FPL GROUP, INC., a
corporation duly organized and existing under the laws of the State of Florida
(herein called the "Guarantor"), having its principal office at 700 Universe
Boulevard, Juno Beach, Florida 33408, and THE BANK OF NEW YORK, a New York
banking corporation having its principal corporate trust office at 101 Barclay
Street, Floor 8W, New York, New York 10286, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), in an unlimited aggregate principal amount to be issued in
one or more series as contemplated herein, with Guarantees endorsed thereon; and
all acts necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been performed and all acts necessary to make
this Indenture a valid agreement of the Company have been performed.
RECITAL OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the guarantee of the Securities provided for herein;
and all acts necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been performed.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires, capitalized terms used herein
shall have the meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
<PAGE>
2
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the
date of such computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this Indenture;
provided, however, that in determining generally accepted accounting
principles applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any administrative
agency, regulatory authority or other governmental body having jurisdiction
over the Company;
(d) 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; and
(e) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture.
Certain terms, used principally in Article Nine, are defined in that
Article.
"ACT", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"ADDITIONAL INTEREST" has the meaning specified in Section 313.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the Company or an
Affiliate of the Company) authorized by the Trustee pursuant to Section 915 to
act on behalf of the Trustee to authenticate one or more series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, any
Assistant Secretary or any other officer or agent of the Company or the
Guarantor, as the case requires, duly authorized by their respective Board of
Directors to act in respect of matters relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or the Guarantor, as the case requires, or any committee of that board
duly authorized to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor, as the case
requires, to have been duly adopted by the Board of Directors of the Company or
the Guarantor, as the case requires, and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
<PAGE>
3
"BUSINESS DAY", when used with respect to a Place of Payment or any
other particular location specified in the Securities or this Indenture, means
any day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the date of execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body, if any, performing such duties at such time.
"COMMON SECURITIES" means any common trust interests issued by a Trust
or similar securities issued by permitted successors to such Trust in accordance
with the Trust Agreement pertaining to such Trust.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" OR "COMPANY ORDER" means a written request or order
signed in the name of the Company by an Authorized Officer and delivered to the
Trustee.
"CORPORATE TRUST OFFICE" means the corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 101
Barclay Street, 8W, New York, New York 10286.
"CORPORATION" means a corporation, association, bank, company, limited
liability company, joint stock company, or statutory trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DISCOUNT SECURITY" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 802. The term
"INTEREST" with respect to a Discount Security means interest, if any, borne by
such Security at a Stated Interest Rate.
"DOLLAR" OR "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars, Government
Obligations; or
(b) with respect to Securities denominated in a currency other than
Dollars or in a composite currency, such other obligations or instruments
as shall be specified with respect to such Securities, as contemplated by
Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and the rules
and regulations promulgated thereunder, as amended from time to time, or any
successor legislation.
<PAGE>
4
"GOVERNMENTAL AUTHORITY" means the government of the United States or
of any State or Territory thereof or of the District of Columbia or of any
county, municipality or other political subdivision of any of the foregoing, or
any department, agency, authority or other instrumentality of any of the
foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States and
entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in clause (a)
above or in any specific interest or principal payments due in respect
thereof; provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or trust company
(which may include the Trustee or any Paying Agent) subject to Federal or
state supervision or examination with a combined capital and surplus of at
least $50,000,000; and provided, further, that except as may be otherwise
required by law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the full amount
received by such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction therefrom.
"GUARANTEE" means any guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the guarantee set forth in Section 1401.
"GUARANTOR" means the Person named as "Guarantor" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall include such successor Person.
"GUARANTOR ORDER " or "GUARANTOR REQUEST" mean, respectively, a
written order or request, as the case may be, signed in the name of the
Guarantor by an Authorized Officer of the Guarantor and delivered to the
Trustee.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed and delivered
and as it may from time to time be supplemented or amended by one or more
indentures or other instruments supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and
any such supplemental indenture or other instrument, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this Indenture and any
such supplemental indenture or such other instrument, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in such Security or in this Indenture, whether at the
Stated Maturity, by declaration of acceleration, upon call for redemption or
otherwise.
<PAGE>
5
"NOTICE OF DEFAULT", means a written notice of the kind specified in
Section 801(c).
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer of the Company or the Guarantor, as the case requires, and delivered to
the Trustee. An Officer's Certificate of the Company may be combined with an
Officer's Certificate of the Guarantor if signed by Authorized Officers of the
Company and the Guarantor.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company or the Guarantor or an Affiliate of the Company or the
Guarantor, or an employee of any thereof, and who shall be reasonably acceptable
to the Trustee.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled or delivered to the Security
Registrar for cancellation;
(b) Securities deemed to have been paid for all purposes of this
Indenture in accordance with Section 701 (whether or not the Company's
indebtedness in respect thereof shall be satisfied and discharged for any
other purpose); and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are held by a bona
fide purchaser or purchasers in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all
Securities Outstanding under this Indenture, or all Outstanding
Securities of each such series and each such Tranche, as the case may
be, determined without regard to this clause (x)) 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 or upon
any such determination as to the presence of a quorum, only Securities
which the Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor;
(y) the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802; and
<PAGE>
6
(z) the principal amount of any Security which is denominated in
a currency other than Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall be the amount of
Dollars which could have been purchased by the principal amount (or,
in the case of a Discount Security, the Dollar equivalent on the date
determined as set forth below of the amount determined as provided in
(y) above) of such currency or composite currency evidenced by such
Security, in each such case certified to the Trustee in an Officer's
Certificate of the Company, based (i) on the average of the mean of
the buying and selling spot rates quoted by three banks which are
members of the New York Clearing House Association selected by the
Company in effect at 11:00 A.M. (New York time) in The City of New
York on the fifth Business Day preceding any such determination or
(ii) if on such fifth Business Day it shall not be possible or
practicable to obtain such quotations from such three banks, on such
other quotations or alternative methods of determination which shall
be as consistent as practicable with the method set forth in (i)
above;
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company or the
Guarantor, authorized by the Company or the Guarantor to pay the principal of
and premium, if any, or interest, if any, on any Securities on behalf of the
Company or the Guarantor.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time any or all of the specific terms of which Securities, including
without limitation the rate or rates of interest or formula for determining the
rate or rates of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"PERSON" means a legal person, including any individual, Corporation,
estate, partnership, joint venture, unincorporated association or government, or
any agency or political subdivision thereof or any other entity of whatever
nature.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series, or any Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities of such series or
Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"PREFERRED SECURITIES" means any preferred trust interests issued by a
Trust or similar securities issued by permitted successors to such Trust in
accordance with the Trust Agreement pertaining to such Trust.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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7
"REDEMPTION PRICE", when used with respect to any Security 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 on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and delivered
under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, and the rules and
regulations promulgated thereunder, as amended from time to time, or any
successor legislation.
"SECURITY REGISTER" AND "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SENIOR INDEBTEDNESS" when used with respect to the Company or the
Guarantor, means all of the Company's or Guarantor's obligations, as the case
may be, whether presently existing or from time to time hereafter incurred,
created, assumed or existing, to pay principal, premium, interest, penalties,
fees and any other payment in respect of any of the following:
(a) obligations for borrowed money, including without limitation, such
obligations as are evidenced by credit agreements, notes, debentures, bonds or
other securities or instruments;
(b) capitalized lease obligations;
(c) all obligations of the types referred to in clauses (a) and (b)
of others which the Company or the Guarantor, as the case may be, has assumed,
<PAGE>
8
endorsed, guaranteed, contingently agreed to purchase or provide funds for the
payment of, or otherwise becomes liable for, under any agreement; or
(d) all renewals, extensions or refundings of obligations of the kinds
described in any of the preceding categories.
unless, in the case of any particular obligation, indebtedness,
renewal, extension or refunding, the instrument creating or evidencing the same
or the assumption, endorsement or guarantee of the same expressly provides that
such obligation, indebtedness, renewal, extension or refunding is not superior
in right of payment to or is pari passu with the Securities or the Guarantee, as
the case may be; and provided further that trade accounts payable or long-term
purchase obligations, shall not be deemed to be Senior Indebtedness.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at
which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by reference
to the Stated Interest Rate on a Security shall be made without regard to the
effective interest cost to the Company of such Security and without regard to
the Stated Interest Rate on, or the effective cost to the Company of, any other
indebtedness in respect of which the Company's obligations are evidenced or
secured in whole or in part by such Security.
"STATED MATURITY", when used with respect to any Security or any
obligation or any installment of principal thereof or interest thereon, means
the date on which the principal of such obligation or such installment of
principal or interest is stated in such Security to be due and payable (without
regard to any provisions for redemption, prepayment, acceleration, purchase or
extension).
"TRANCHE" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount and/or date of
issuance.
"TRUST" means FPL Group Capital Trust __, a statutory trust formed
under the laws of the State of Delaware, or any other trust designated pursuant
to Section 301 hereof or any permitted successor under the Trust Agreement
pertaining to such Trust.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement,
dated as of ______, ____, relating to FPL Group Capital Trust __, or an Amended
and Restated Trust Agreement relating to a Trust designated pursuant to Section
301 hereof, in each case, among FPL Group, Inc., as Depositor, the trustees
named therein and the several holders referred to therein, as such agreement or
agreements, as the case may be, may be amended from time to time.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture Act
of 1939, as amended, or any successor statute, as in effect at such time.
"TRUST SECURITIES GUARANTEE" means the Preferred Trust Securities
Guarantee Agreement between FPL Group, Inc., as guarantor, and a guarantee
trustee for the benefit of the holders of Preferred Securities issued by such
Trust.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
<PAGE>
9
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"UNITED STATES" means the United States of America, its Territories,
its possessions and other areas subject to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company and the Guarantor
shall each, furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 103. 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 by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which such
Officer's Certificate or opinion are based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company or the Guarantor stating that the information with respect to
such factual matters is in the possession of the Company or the Guarantor,
<PAGE>
10
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 (i) any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, or (ii) two or more Persons are each required
to make, give or execute any such application, request, consent, certificate,
statement, opinion or other instrument under this Indenture, any such
applications, requests, consents, certificates, statements, opinions or other
instruments may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company or the Guarantor which could not have been
taken had the original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and effect, except to the
extent that such action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be the
valid obligations of the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively, may be embodied
in and evidenced by the record of Holders voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except
as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company and the
Guarantor. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901) conclusive in favor of the
Trustee, the Company and the Guarantor, if made in the manner provided in
this Section. The record of any meeting of Holders shall be proved in the
manner provided in Section 1306.
(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 a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which the Trustee
and the Company deem sufficient. Where such execution is by a signer acting
<PAGE>
11
in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in
clause (y) of the first proviso to the definition of Outstanding) and
serial numbers of Securities held by any Person, and the date of holding
the same, shall be proved by the Security Register;
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee, the Company or the Guarantor in reliance thereon, whether or
not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount
of Securities for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so modified as to
conform, in the opinion of the Trustee and the Company, to such action may
be prepared and executed by the Company and the Guarantor and authenticated
and delivered by the Trustee in exchange for Outstanding Securities of such
series or Tranche.
(g) If the Company or the Guarantor shall solicit from Holders any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company or the Guarantor, as the case may be, may, at its option,
by Company Order or Guarantor Order, as appropriate, fix in advance a
record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but
neither the Company nor the Guarantor shall have any obligation to do so.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or
after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as
of the record date. Any such Act, given as aforesaid, shall be effective
whether or not the Holders which authorized or agreed or consented to such
Act remain Holders after such record date and whether or not the Securities
held by such Holders remain Outstanding after such record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE, COMPANY AND GUARANTOR.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company or the Guarantor, or the Company or the
Guarantor by the Trustee or by any Holder, shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
delivered personally to an officer or other responsible employee of the
<PAGE>
12
addressee, or transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic communications
address as the parties hereto shall from time to time designate, or transmitted
by registered mail, charges prepaid, to the applicable address set opposite such
party's name below or to such other address as such party hereto may from time
to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Attention: Corporate Trust Administration
Telephone:
Facsimile:
If to the Company, to:
FPL Group Capital Inc
700 Universe Boulevard
Juno Beach, Florida 33408
Attention: Treasurer
Telephone:
Facsimile:
If to the Guarantor, to:
FPL Group, Inc.
700 Universe Boulevard
Juno Beach, Florida 33408
Attention: Treasurer
Telephone:
Facsimile:
Any communication contemplated herein shall be deemed to have been
made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission or other direct written
electronic means, on the date of transmission, and if transmitted by registered
mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
<PAGE>
13
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company, the
Guarantor and Trustee shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or the
Guarantees shall be held to 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 111. BENEFITS OF INDENTURE.
Nothing in this Indenture, the Securities or the Guarantees, express
or implied, shall give to any Person, other than the parties hereto, their
successors hereunder, the Holders and, so long as the notice described in
Section 1513 hereof has not been given, the holders of Senior Indebtedness, any
benefit or any legal or equitable right, remedy or claim under this Indenture,
provided, however, that for so long as any Preferred Securities remain
outstanding, the holders of such Preferred Securities, subject to certain
limitations set forth in this Indenture, may enforce the Company's and the
Guarantor's obligations hereunder, directly against the Company or the
Guarantor, as the case may be, as third party beneficiaries of this Indenture
without proceeding against the Trust issuing such Preferred Securities.
SECTION 112. GOVERNING LAW.
This Indenture, the Securities and the Guarantees shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of laws principles thereunder, except to the extent that the
law of any other jurisdiction shall be mandatorily applicable.
<PAGE>
14
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in Securities of any series, or any Tranche thereof, or
in an indenture supplemental hereto, or in the Board Resolution or Officer's
Certificate which establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall apply in lieu of
this Section) payment of interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment, except that if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect,
and in the same amount, as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, as the case may be, and, if such payment is
made or duly provided for on such Business Day, no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series and the Guarantees to be
endorsed thereon as contemplated by Article Fourteen shall be in substantially
the form or forms thereof established in the indenture supplemental hereto
establishing such series or in a Board Resolution establishing such series, or
in an Officer's Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate terms, 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 Securities or the Guarantees endorsed
thereon, as the case may be, as evidenced by their execution thereof. If the
form or forms of Securities of any series or the Guarantees endorsed thereon are
established in a Board Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's Certificate, if any, shall
be delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Sections 301 or 1201(g),
the Securities of each series shall be issuable in registered form without
coupons. The definitive Securities and Guarantees endorsed thereon shall be
produced in such manner as shall be determined by the officers executing such
Securities or Guarantees, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
<PAGE>
15
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited; provided,
however, that all Securities shall be issued to a Trust to evidence the
acquisition of Securities by a Trust with the proceeds of the issuance of
Preferred Securities and Common Securities of such Trust.
The Securities may be issued in one or more series. Subject to the
last paragraph of this Section, prior to the authentication and delivery of
Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution of the Company, or in an
Officer's Certificate of the Company (which need not comply with Section 102)
pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities of
such series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 304, 305, 306, 406 or 1206 and, except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than the Persons in whose
names such Securities (or one or more Predecessor Securities) are
registered at the close of business on the Regular Record Date for such
interest;
(d) the date or dates on which the principal of the Securities of such
series or any Tranche thereof, is payable or any formulary or other method
or other means by which such date or dates shall be determined, by
reference to an index or other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal shall bear interest, if different from the rate
or rates at which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other method or other
means by which such rate or rates shall be determined, by reference to an
index or other fact or event ascertainable outside of this Indenture or
<PAGE>
16
otherwise; the date or dates from which such interest shall accrue; the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on such Securities on
any Interest Payment Date; the right of the Company, if any, to extend the
interest payment periods and the duration of any such extension as
contemplated by Section 312; and the basis of computation of interest, if
other than as provided in Section 310;
(f) the place or places at which or methods (if other than as provided
elsewhere in this Indenture) by which (1) the principal of and premium, if
any, and interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, (2) registration of transfer of Securities of
such series, or any Tranche thereof, may be effected, (3) exchanges of
Securities of such series, or any Tranche thereof, may be effected and (4)
notices and demands to or upon the Company in respect of the Securities of
such series, or any Tranche thereof, and this Indenture may be served; the
Security Registrar and any Paying Agent or Agents for such series or
Tranche; and if such is the case, that the principal of such Securities
shall be payable without presentment or surrender thereof;
(g) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof, may be redeemed, in
whole or in part, at the option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a partial
redemption by the Company of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities from any national
exchange, the Nasdaq national market or such other interdealer quotation
system or self-regulatory organization upon which Securities are listed or
traded;
(h) the obligation or obligations, if any, of the Company to redeem or
purchase or repay the Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory redemption provisions or at
the option of a Holder thereof and the period or periods within which or
the date or dates on which, the price or prices at which and the terms and
conditions upon which such Securities shall be redeemed or purchased or
repaid, in whole or in part, pursuant to such obligation, and applicable
exceptions to the requirements of Section 404 in the case of mandatory
redemption or redemption or repayment at the option of the Holder;
(i) the denominations in which Securities of such series, or any
Tranche thereof, shall be issuable if other than denominations of $25 and
any integral multiple thereof;
(j) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest, if
any, on the Securities of such series, or any Tranche thereof, shall be
payable (if other than in Dollars) and the manner in which the equivalent
of the principal amount thereof in Dollars is to be determined for any
purpose, including for the purpose of determining the principal amount
deemed to be Outstanding at any time;
(k) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made;
(l) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or
<PAGE>
17
other property, or the formulary or other method or other means by which
such amount shall be determined, and the period or periods within which,
and the terms and conditions upon which, any such election may be made;
(m) if the amount payable in respect of principal of or premium, if
any, or interest, if any, on the Securities of such series, or any Tranche
thereof, may be determined with reference to an index or other fact or
event ascertainable outside of this Indenture, the manner in which such
amounts shall be determined to the extent not established pursuant to
clause (e) of this paragraph;
(n) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in
Section 801, or any exceptions to those specified in Section 801 with
respect to the Securities of such series, and any covenants of the Company
or the Guarantor for the benefit of the Holders of the Securities of such
series, or any Tranche thereof, in addition to those set forth in Article
Six, or any exceptions to those set forth in Article Six, and in Article
Fourteen;
(p) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any other
Person;
(q) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such series, or
any Tranche thereof, denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as provided in Sections 701
and 702 (or any exceptions to those set forth in Sections 701 and 702);
(r) if the Securities of such series, or any Tranche thereof, are to
be issued in global form, (i) any limitations on the rights of the Holder
or Holders of such Securities to transfer or exchange the same or to obtain
the registration of transfer thereof, (ii) any limitations on the rights of
the Holder or Holders thereof to obtain certificates therefor in definitive
form in lieu of global form and (iii) any and all other matters incidental
to such Securities;
(s) if the Securities of such series, or any Tranche thereof, are to
be issuable as bearer securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental indenture as
contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the Securities
of such Series, or any Tranche thereof, to transfer or exchange such
Securities or to obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer or exchange of
Securities of such series, or any Tranche thereof, the amount or terms
thereof;
(u) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any Tranche
thereof;
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18
(v) any collateral security, assurance or guarantee for the Securities
of such series, or any Tranche thereof in addition to those set forth in
Section 1401, or any exceptions to those set forth in Section 1401);
(w) the designation of the Trust to which Securities of such series
are to be issued;
(x) the terms, if any, relating to any Additional Interest that may
limit or restrict payments of Additional Interest; and
(y) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
With respect to Securities of a series subject to a Periodic Offering,
the indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company Order as
contemplated by clause (b) of Section 303.
All Securities of any one series shall be substantially identical,
except as to principal amount and date of issue and except as may be set forth
in the terms of such series as contemplated above. The Securities of each series
shall be subordinated in right of payment to Senior Indebtedness of the Company
as provided in Article Fifteen. The Guarantees relating to such Securities shall
be subordinated in right of payment to Senior Indebtedness of the Guarantor as
provided in Article Fourteen.
Unless otherwise provided with respect to a series of Securities as
contemplated in Section 301(b), the aggregate principal amount of a series of
Securities may be increased and additional Securities of such series may be
issued up to the maximum aggregate principal amount authorized with respect to
such series as increased.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, the Securities of each
series shall be issuable in denominations of $25 and any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, the Securities shall be
executed on behalf of the Company by an Authorized Officer of the Company and
may have the corporate seal of the Company affixed thereto or reproduced thereon
and attested by any other Authorized Officer of the Company. The signature of
any or all of these officers on the Securities may be manual or facsimile.
Unless otherwise provided as contemplated by Section 301, with respect
to any series of Securities or any Tranche thereof, Guarantees to be endorsed on
any Securities shall be executed and delivered in accordance with the provisions
of Section 1402.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of execution Authorized Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
<PAGE>
19
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities of a series,
with the Guarantees endorsed thereon, for original issue, at one time or from
time to time in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms and
terms of the Securities of such series and the Guarantees to be endorsed
thereon, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery of such
Securities with the Guarantees endorsed thereon and to the extent that the
terms of such Securities and Guarantees shall not have been established in
an indenture supplemental hereto or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301, either
(i) establishing such terms or (ii) in the case of Securities of a series
subject to a Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee, for authentication and
delivery pursuant to oral or electronic instructions from the Company or
any agent or agents thereof, which oral instructions are to be promptly
confirmed electronically or in writing), in either case in accordance with
the instrument or instruments delivered pursuant to clause (a) above;
(c) a Guarantor Order (which may be combined with a Company Order
hereunder) approving the terms and delivery of the Guarantees to be
endorsed on such Securities as contemplated by the Company Order delivered
pursuant to clause (b) above;
(d) the Securities of such series, each executed on behalf of the
Company by an Authorized Officer of the Company and having a Guarantee
endorsed thereon executed on behalf of the Guarantor by an Authorized
Officer of the Guarantor;
(e) an Opinion of Counsel to the effect that:
(i) (A) the form or forms of such Securities have been duly
authorized by the Company, (B) the form or forms of such Guarantees
have been duly authorized by the Guarantor, and (C) the form or forms
of the Securities and the Guarantees have been established in
conformity with the provisions of this Indenture;
(ii) (A) the terms of such Securities have been duly authorized
by the Company, (B) the terms of such Guarantees have been duly
authorized by the Guarantor and (C) the terms of the Securities and
the Guarantees have been established in conformity with the provisions
of this Indenture; and
(iii) such Securities and the Guarantees endorsed thereon, when
authenticated and delivered by the Trustee and issued and delivered by
the Company and the Guarantor in the manner and subject to any
conditions specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and legally
binding obligations of the Company and the Guarantor, respectively,
entitled to the benefits provided by this Indenture, and enforceable
in accordance with their terms, subject, as to enforcement, to laws
relating to or affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and insolvency laws
<PAGE>
20
and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication and
delivery of Securities of such series, and the Guarantees endorsed thereon, and
that in lieu of the opinions described in clauses (ii) and (iii) above such
Opinion of Counsel may, alternatively, state, respectively,
(x) that, when the terms of such Securities and the Guarantees to
be endorsed thereon shall have been established pursuant to a Company
Order or Orders and, if applicable, a Guarantor Order or Orders or
pursuant to such procedures (acceptable to the Trustee) as may be
specified from time to time by a Company Order or Orders, and, if
applicable, a Guarantor Order or Orders all as contemplated by and in
accordance with the instrument or instruments delivered pursuant to
clause (a) above, such terms will have been duly authorized by the
Company and the Guarantor, respectively, and will have been
established in conformity with the provisions of this Indenture; and
(y) that such Securities, and the Guarantees endorsed thereon,
when (1) executed by the Company and the Guarantor, as the case may
be, (2) authenticated and delivered by the Trustee in accordance with
this Indenture, (3) issued and delivered by the Company and the
Guarantor in the manner and subject to any conditions specified in
such Opinion of Counsel and (4) in the case of Securities, paid for,
all as contemplated by and in accordance with the aforesaid Company
Order or Orders and, if applicable, a Guarantor Order or Orders or
specified procedures referred to in paragraph (x) above, as the case
may be, will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company and
the Guarantor, respectively, entitled to the benefits provided by the
Indenture, and enforceable in accordance with their terms, subject, as
to enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company and
the Guarantor of any of such Securities and Guarantees, the forms and terms
thereof and the legality, validity, binding effect and enforceability thereof,
upon the Opinion of Counsel and other documents delivered pursuant to Sections
201 and 301 and this Section, as applicable, at or prior to the time of the
first authentication of Securities of such series, with the Guarantees endorsed
thereon, unless and until such opinion or other documents have been superseded
or revoked or expire by their terms. In connection with the authentication and
delivery of Securities of a series, with the Guarantees endorsed thereon,
pursuant to a Periodic Offering, the Trustee shall be entitled to assume that
the Company's instructions to authenticate and deliver such Securities and the
Guarantor's approval of the delivery of the Guarantees thereon do not violate
any applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company or the Guarantor.
If the forms or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to this
<PAGE>
21
Indenture will materially or adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, each Security and any
Guarantee endorsed thereon shall each be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, no Security or Guarantee
endorsed thereon shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature of an
authorized officer hereof, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security or Guarantee
endorsed thereon has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered hereunder to the
Company, or any Person acting on its behalf, but shall never have been issued
and sold by the Company, and the Company shall deliver such Security to the
Security Registrar for cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102 and need not be
accompanied by an Officer's Certificate and an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security (including any Guarantee endorsed thereon) shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or any
Tranche thereof, the Company may execute, and upon Company Order and a Guarantor
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, having Guarantees endorsed thereon with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities or Guarantees may determine, as evidenced by
their execution of such Securities or Guarantees; provided, however, that
temporary Securities need not recite specific redemption, sinking fund,
conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, after the preparation
of definitive Securities of such series or Tranche, the temporary Securities of
such series or Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche with the definitive
Guarantee endorsed thereon upon surrender of such temporary Securities at the
office or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary Securities, the
Company shall, except as aforesaid, execute and the Trustee shall authenticate
and deliver in exchange therefor definitive Securities of the same series and
Tranche, of authorized denominations and of like tenor and aggregate principal
amount with the definitive Guarantee endorsed thereon.
Until exchanged in full as hereinabove provided, temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
<PAGE>
22
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated pursuant
to Section 602, with respect to the Securities of each series or any Tranche
thereof, a register (all registers kept in accordance with this Section being
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities of such series or Tranche and the registration of
transfer thereof. The Company shall designate one Person to maintain the
Security Register for the Securities of each series on a consolidated basis, and
such Person is referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices or an office of any Affiliate (including
the Guarantor) as an office in which a register with respect to the Securities
of one or more series, or any Tranche or Tranches thereof, shall be maintained,
and the Company may designate itself or any Affiliate (including the Guarantor)
as the Security Registrar with respect to one or more of such series. The
Security Register shall be open for inspection by the Trustee, the Company and
the Guarantor at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon surrender
for registration of transfer of any Security of such series or Tranche at the
office or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount, with
the Guarantee endorsed thereon.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any Security of
such series or Tranche may be exchanged at the option of the Holder, for one or
more new Securities of the same series and Tranche, of authorized denominations
and of like tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities, with the Guarantee endorsed
thereon which the Holder making the exchange is entitled to receive.
All Securities and Guarantees delivered upon any registration of
transfer or exchange of Securities and the Guarantees endorsed thereon shall be
valid obligations of the Company and Guarantor, respectively evidencing the same
obligation, and entitled to the same benefits under this Indenture, as the
Securities and Guarantees surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Guarantor, the Trustee
or the Security Registrar) be duly endorsed or shall be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Guarantor, the
Trustee or the Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with respect
to Securities of any series, or any Tranche thereof, no service charge shall be
made for any registration of transfer or exchange of Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 406 or
1206 not involving any transfer.
<PAGE>
23
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any series, or
any Tranche thereof, during a period of 15 days immediately preceding the date
notice is to be given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and Tranche, and of like tenor and
principal amount, having a Guarantee endorsed thereon and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the
Trustee (a) evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security or indemnity as
may be reasonably required by them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company, the Guarantor
or the Trustee that such Security is held by a Person purporting to be the owner
of such Security, the Company shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and Tranche, and of like tenor and principal amount,
having a Guarantee endorsed thereon and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the
Company or the Guarantor in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) in
connection therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security and any Guarantee endorsed
thereon shall constitute an original additional contractual obligation of the
Company and the Guarantor, respectively, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone other than the Holder
of such new Security, and any such new Security shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of such series 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 Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
<PAGE>
24
Subject to Section 312, any interest on any Security of any series
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the Holder on the related Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
or the Guarantor, at its election in each case, as provided in clause (a) or (b)
below:
(a) The Company or the Guarantor may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a date (herein called a "Special Record Date") for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company or the Guarantor shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the
Company or the Guarantor, as the case may be, 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 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company and the
Guarantor of such Special Record Date and, in the name and at the expense
of the Company, shall promptly cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at
the address of such Holder as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date.
(b) The Company or the Guarantor may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company or the Guarantor to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to the due presentment of a Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name such Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and premium, if any, and (subject to Sections 305 and
307) interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Guarantor
or Trustee or any agent of the Company, the Guarantor or the Trustee shall be
affected by notice to the contrary.
<PAGE>
25
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or credit against any sinking fund payment shall, if
surrendered to any Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be promptly canceled
by the Security Registrar. The Company or the Guarantor may at any time deliver
to the Security Registrar for cancellation any Securities previously
authenticated and delivered hereunder which the Company or the Guarantor may
have acquired in any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly canceled by
the Security Registrar. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance with the customary
procedures of the Security Registrar as at the time of disposition shall be in
effect, and the Security Registrar shall promptly deliver a certificate of
disposition to the Trustee, the Company and the Guarantor unless, by a Company
Order delivered to the Security Registrar and the Trustee, the Company shall
direct that canceled Securities be returned to it. The Security Registrar shall
promptly deliver evidence of any cancellation of a Security in accordance with
this Section 309 to the Trustee, the Company and the Guarantor.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or any Tranche thereof, interest on the Securities of
each series shall be computed on the basis of a 360-day year consisting of
twelve 30-day months and for any period shorter than a full calendar month, on
the basis of the actual number of days elapsed during such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche thereof,
denominated in any currency other than Dollars or in a composite currency (the
"Required Currency"), except as otherwise specified with respect to such
Securities as contemplated by Section 301, the obligation of the Company or the
Guarantor to make any payment of the principal thereof, or the premium, if any,
or interest, if any, thereon, shall not be discharged or satisfied by any tender
by the Company or the Guarantor, or recovery by the Trustee, in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the Trustee timely holding the full amount of the
Required Currency then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the Required Currency.
The costs and risks of any such exchange, including without limitation the risks
of delay and exchange rate fluctuation, shall be borne by the Company and the
Guarantor, the Company and the Guarantor shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable therefor except in
the case of its negligence or willful misconduct.
SECTION 312. EXTENSION OF INTEREST PAYMENT
The Company shall have the right at any time, so long as no Event of
Default hereunder has occurred and is continuing with respect to the Securities
of any series, to extend interest payment periods from time to time on all
Securities of such series, if so specified as contemplated by Section 301 with
respect to such Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such Securities.
<PAGE>
26
SECTION 313. ADDITIONAL INTEREST
So long as any Preferred Securities remain outstanding, if the Trust
which issued such Preferred Securities shall be required to pay, with respect to
its income derived from the interest payments on the Securities of any series,
any amounts for or on account of any taxes, duties, assessments or governmental
charges of whatever nature imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as interest on such
series such additional interest ("Additional Interest") as may be necessary in
order that the net amounts received and retained by such Trust after the payment
of such taxes, duties, assessments or governmental charges shall result in such
Trust's having such funds as it would have had in the absence of any such
payments.
Whenever in this Indenture there is mentioned, in any context, the
payment of interest on the Securities, such mention shall be deemed to include
the payment of Additional Interest to the extent that, in such context,
Additional Interest is, was or would be payable in respect thereof.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of such series or Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate of the Company. The
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee and in the case of Securities of a series held by a Trust, the
Property Trustee under the related Trust Agreement, in writing of such
Redemption Date and of the principal amount of such Securities to be redeemed.
In the case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities or elsewhere
in this Indenture, the Company and the Guarantor, if applicable, shall each
furnish the Trustee with an Officer's Certificate evidencing compliance with
such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche thereof,
are to be redeemed, the particular Securities to be redeemed shall be selected
by the Trustee from the Outstanding Securities of such series or Tranche not
previously called for redemption, by such method as shall be provided for any
particular series or Tranche, or, in the absence of any such provision, by such
method as the Trustee shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of such series or Tranche or any integral
multiple thereof) of the principal amount of Securities of such series or
Tranche of a denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if, as indicated
in an Officer's Certificate, the Company shall have offered to purchase all or
any principal amount of the Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities as to which such offer was
<PAGE>
27
made shall have been tendered to the Company for such purchase, the Trustee, if
so directed by Company Order, shall select for redemption all or any principal
amount of such Securities which have not been so tendered.
The Trustee shall promptly notify the Company, the Guarantor and the
Security Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected to be redeemed in part, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of the Securities to be redeemed not less than 30 nor more
than 60 days prior to the Redemption Date.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or any Tranche thereof, all notices of redemption
shall state:
(a) the Redemption Date,
(b) the Redemption Price, or the formula pursuant to which the
Redemption Price is to be determined if the Redemption Price cannot be
determined at the time the notice is given,
(c) if less than all the Outstanding Securities of any series or
Tranche are to be redeemed, the identification of the particular Securities
to be redeemed and the portion of the principal amount of any Security to
be redeemed in part,
(d) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if such is the
case,
(g) the CUSIP numbers, if any, assigned to such Securities; provided
however, that such notice may state that no representation is made as to
the correctness of CUSIP numbers, and the redemption of such Securities
shall not be affected by any defect in or omission of such numbers, and
(h) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in accordance with
Section 701, such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the principal
<PAGE>
28
of and premium, if any, and interest, if any, on such Securities and that if
such money shall not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the Holders thereof any
of such Securities which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, 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. Notice of mandatory
redemption of Securities shall be given by the Trustee in the name and at the
expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof 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, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such surrender shall be a
condition to such payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of which installment
is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close
of business on the related Regular Record Date according to the terms of such
Security and subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only in
part at a Place of Payment therefor (with, if the Company, the Guarantor or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Guarantor and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities of the same
series and Tranche, of any authorized denomination requested by such Holder and
of like tenor and in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered, with the
Guarantee endorsed thereon.
<PAGE>
29
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Securities
(other than any previously called for redemption) of a series or Tranche in
respect of which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series or Tranche which have been
(i) redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities or (ii) repurchased by the
Company in the open market, by tender offer or otherwise, in each case in
satisfaction of all or any part of such mandatory sinking fund payment;
provided, however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been previously so
applied. Securities so applied shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company shall deliver to
the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by the payment of cash; and
<PAGE>
30
(e) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by delivering and crediting Securities of such series or
Tranche pursuant to Section 502 and stating the basis for such credit and
that such Securities have not previously been so credited, and the Company
shall also deliver to the Trustee not later than 45 days prior to such
sinking fund payment date, any Securities to be so delivered.
If the Company shall not deliver such Officer's Certificate, the next
succeeding sinking fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund payment. Not less
than 40 days before each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 404. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 405
and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any, and
interest, if any (including Additional Interest), on the Securities of each
series in accordance with the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company and the Guarantor shall maintain in each Place of Payment
for the Securities of each series, or any Tranche thereof, an office or agency
where payment of such Securities shall be made or such Securities shall be
surrendered for payment, where the registration of transfer or exchange of such
Securities may be effected and where notices and demands to or upon the Company
or the Guarantor in respect of such Securities and this Indenture may be served.
The Company and the Guarantor shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office or agency and
prompt notice to the Holders of any such change in the manner specified in
Section 106. If at any time the Company or the Guarantor shall fail to maintain
any such required office or agency in respect of Securities of any series, or
any Tranche thereof, or shall fail to furnish the Trustee with the address
thereof, payment of such Securities may be made, registration of transfer or
exchange thereof may be effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee, and each of the Company
and the Guarantor hereby appoints the Trustee as its agent for all such purposes
in any such event.
The Company or the Guarantor may also from time to time designate one
or more other offices or agencies with respect to the Securities of one or more
series, or any Tranche thereof, for any or all of the foregoing purposes and may
from time to time rescind such designations; provided, however, that, unless
otherwise specified as contemplated by Section 301 with respect to the
Securities of such series or Tranche, no such designation or rescission shall in
any manner relieve the Company or the Guarantor of its obligation to maintain an
office or agency for such purposes in each Place of Payment for such Securities
in accordance with the requirements set forth above. The Company and the
Guarantor shall give prompt written notice to the Trustee, and prompt notice to
the Holders in the manner specified in Section 106, of any such designation or
rescission and of any change in the location of any such other office or agency.
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31
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at an office of the Company or the
Guarantor or any Affiliate of either of them, in which event the Company, the
Guarantor or such Affiliate, as the case may be, shall perform all functions to
be performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest, if
any, on any of such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and premium,
if any, or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The Company shall promptly
notify the Trustee of any failure by the Company (or any other obligor on such
Securities) to make any payment of principal of or premium, if any, or interest,
if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before each
due date of the principal of and premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sums 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 shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Company or 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 shall:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if any, on such Securities 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;
(b) give the Trustee notice of any failure by the Company (or any
other obligor upon such Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such Securities; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and addresses of the
Persons entitled to such sums.
The Company may at any time 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, if so
stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
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 and premium, if
any, or interest, if any, on any Security and remaining unclaimed for two years
after such principal and premium, if any, or interest, if any, has become due
<PAGE>
32
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, upon such payment or
discharge, the Holder of such Security shall, as an unsecured general creditor
and not as a Holder of an Outstanding Security, look only to the Company and the
Guarantor for payment of the amount so due and payable and remaining unpaid, 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 payment to the Company, may at the expense of the
Company cause to be mailed, on one occasion only, notice to such Holder that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such mailing, [any unclaimed
balance of such money then remaining will be paid to the Company or (b) cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, New York, notice that such money remains
unclaimed and that after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be paid to the Company.]
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company and the Guarantor under Article
Eleven, each of the Company and the Guarantor shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
Each of the Company and the Guarantor shall cause (or, with respect to
property owned in common with others, make reasonable effort to 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 shall cause (or, with
respect to property owned in common with others, make reasonable effort to
cause) to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company or the Guarantor,
as the case may be, may be necessary so that the business carried on in
connection therewith may be properly conducted; provided, however, that nothing
in this Section shall prevent the Company or the Guarantor from discontinuing,
or causing the discontinuance of, the operation and maintenance of any of its
properties if such discontinuance is, in the judgment of the Company or the
Guarantor, as the case may be, desirable in the conduct of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than April __ in each year, commencing April __, 200__, each
of the Company and the Guarantor shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed by its principal
executive officer, principal financial officer or the principal accounting
officer, as to such officer's knowledge of such obligor's compliance with all
conditions and covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice under this
Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company or the Guarantor may omit in any particular instance to
comply with any term, provision or condition set forth in (a) Sections 602, 608,
609 or any additional covenant or restriction specified with respect to the
Securities of any series, or any Tranche thereof, as contemplated by Section 301
or by clause (b) of Section 1201 if before the time for such compliance the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which compliance with
<PAGE>
33
Section 602, 608, 609 or such additional covenant or restriction is to be
omitted, considered as one class, shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such term,
provision or condition and (b) Section 604, 605 or Article Eleven if before the
time for such compliance the Holders of a majority in aggregate principal amount
of Securities Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect; provided,
however, so long as a Trust holds Securities of any series, such Trust may not
waive compliance or waive any default in compliance by the Company with any
covenant or other term contained in this Indenture or the Securities of such
series without the approval of the holders of a majority (or such greater
percentage as shall be required by the Trust Agreement pertaining to such Trust)
in aggregate liquidation preference of the outstanding Preferred Securities
issued by such Trust affected, obtained as provided in the Trust Agreement
pertaining to such Trust.
SECTION 608. RESTRICTIONS ON DIVIDENDS AND DEBT PAYMENTS.
So long as any Preferred Securities of any series remain outstanding,
if at such time (a) the Guarantor shall be in default with respect to its
payment obligations under the Trust Securities Guarantee relating to such
Preferred Securities, (b) there shall have occurred and be continuing an Event
of Default (whether before or after expiration of any period of grace) resulting
from a payment default hereunder or (c) the Company shall have elected to extend
any interest payment period as provided in Section 312, and any such period, or
any extension thereof, shall be continuing, then neither the Guarantor nor the
Company shall (i) declare or pay any dividends or distributions on its capital
stock, (ii) redeem, purchase, acquire or make a liquidation payment with respect
to any of its capital stock, (iii) pay any principal, interest or premium on, or
repay, repurchase or redeem any debt securities that are equal or junior in
right of payment to the Securities or the Guarantees (as the case may be), or
(iv) make any payments with respect to any guarantee of debt securities by the
Guarantor if such guarantee is equal or junior in right of payment to the
Securities or the Guarantees (as the case may be) (other than payments under the
Guarantee or the Trust Securities Guarantee relating to such Preferred
Securities).
The foregoing provisions do not prevent or restrict the Guarantor or
the Company from making: (1) purchases, redemptions or other acquisitions of its
capital stock in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors or
agents or a stock purchase or dividend reinvestment plan, or the satisfaction of
its obligations pursuant to any contract or security outstanding on the date
that the interest payment period is extended requiring it to purchase, redeem or
acquire its capital stock, (2) any payment, redemption, purchase, acquisition or
declaration of dividend described in clauses (i) and (ii) above as a result of a
reclassification of its capital stock or the exchange or conversion of all or a
portion of a class or series of its capital stock for another class or series of
its capital stock, (3) the purchase of fractional interests in shares of its
capital stock pursuant to the conversion or exchange provisions of its capital
stock or the security being converted or exchanged, or in connection with the
settlement of stock purchase contracts, (4) dividends or distributions paid or
made in its capital stock (or rights to acquire its capital stock), or
repurchases, redemptions or acquisitions of capital stock in connection with the
issuance or exchange of capital stock (or securities convertible into or
exchangeable for shares of its capital stock) and distributions in connection
with the settlement of stock purchase contracts, (5) redemptions, exchanges or
repurchases of, or with respect to, any rights outstanding under a shareholder
rights plan or the declaration or payment thereunder of a dividend or
distribution of or with respect to rights in the future, (6) payments under any
preferred trust securities guarantee or guarantee of junior subordinated
debentures executed and delivered by the Guarantor concurrently with the
<PAGE>
34
issuance by a trust of any preferred trust securities, so long as the amount of
payments made on any preferred securities or junior subordinated debentures (as
the case may be) is paid on all preferred trust securities or junior
subordinated debentures (as the case may be) then outstanding on a pro rata
basis in proportion to the full distributions to which each series of preferred
trust securities or junior subordinated debentures (as the case may be) is then
entitled if paid in full, (7) dividends or distributions by the Company on its
capital stock owned by the Guarantor, provided that the Guarantor owns [directly
or indirectly] 100% of such capital stock of the Company at the time of, or any
record date for, such payment; or (8) redemptions, purchases, acquisitions or
liquidation payments by the Company with respect to its capital stock owned by
the Guarantor, provided that the Guarantor owns [directly or indirectly] 100% of
such capital stock at the time of, or any record date for, such payment.
SECTION 609. MAINTENANCE OF TRUST EXISTENCE
So long as Preferred Securities of any series remain outstanding, the
Guarantor shall (i) maintain direct or indirect ownership of all interests in
the Trust which issued such Preferred Securities, other than such Preferred
Securities, (ii) not voluntarily (to the extent permitted by law) dissolve,
liquidate or wind up such Trust, except in connection with a distribution of the
Securities to the holders of the Preferred Securities in liquidation of such
Trust, (iii) remain the sole Depositor under the Trust Agreement (the
"Depositor") of such Trust and timely perform in all material respects all of
its duties as Depositor of such Trust, and (iv) use reasonable efforts to cause
such Trust to remain a statutory trust and otherwise continue to be treated as a
grantor trust for Federal income tax purposes, provided that any permitted
successor to the Guarantor under this Indenture may succeed to the Guarantor's
duties as Depositor of such Trust; and provided further that the Guarantor may
permit such Trust to consolidate or merge with or into another statutory or
business trust or other permitted successor under the Trust Agreement pertaining
to such Trust so long as the Guarantor (or such permitted successor) agrees to
comply with this Section 609 with respect to such successor statutory or
business trust or other permitted successor.
SECTION 610. RIGHTS OF HOLDERS OF PREFERRED SECURITIES.
The Company agrees that, for so long as any Preferred Securities
remain outstanding, its obligations under this Indenture will also be for the
benefit of the holders from time to time of Preferred Securities, and the
Company acknowledges and agrees that such holders will be entitled to enforce
this Indenture, as third party beneficiaries, directly against the Company to
the same extent as if such holders of Preferred Securities held a principal
amount of Securities equal to the stated liquidation amount of the Preferred
Securities held by such holders.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal amount
thereof, shall be deemed to have been paid for all purposes of this Indenture,
and the entire indebtedness of the Company and the obligations of the Guarantor
in respect thereof shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the Trustee or any Paying Agent
(other than the Company or the Guarantor), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof at
<PAGE>
35
the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by
the Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest (including
any Additional Interest), if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that in the case of
the provision for payment or redemption of less than all the Securities of any
series or Tranche, such Securities or portions thereof shall have been selected
by the Trustee as provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company to the Trustee to
give such notice, under arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made prior to the Maturity of
such Securities, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 703;
(y) if Eligible Obligations shall have been deposited, an Opinion
of Counsel that the obligations so deposited constitute Eligible
Obligations and do not contain provisions permitting the redemption or
other prepayment at the option of the issuer thereof, and an opinion
of an independent public accountant of nationally recognized standing,
selected by the Company, to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity of
such Securities, an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions thereof will
have been satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon receipt of a Company
Request, acknowledge in writing that the Security or Securities or portions
thereof with respect to which such deposit was made are deemed to have been paid
for all purposes of this Indenture and that the entire indebtedness of the
Company and the obligations of the Guarantor in respect thereof have been
satisfied and discharged as contemplated in this Section. In the event that all
of the conditions set forth in the preceding paragraph shall have been satisfied
in respect of any Securities or portions thereof except that, for any reason,
the Officer's Certificate specified in clause (z) (if otherwise required) shall
not have been delivered, such Securities or portions thereof shall nevertheless
be deemed to have been paid for all purposes of this Indenture, and the Holders
of such Securities or portions thereof shall nevertheless be no longer entitled
to the benefits of this Indenture or of any of the covenants of the Company
under Article Six (except the covenants contained in Sections 602 and 603) or
any other covenants made in respect of such Securities or portions thereof as
contemplated by Section 301 or Section 1201(b), but the indebtedness of the
Company and the obligations of the Guarantor in respect of such Securities or
portions thereof shall not be deemed to have been satisfied and discharged prior
to Maturity for any other purpose, and the Holders of such Securities or
portions thereof shall continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and, upon Company Request, the
Trustee shall acknowledge in writing that such Securities or portions thereof
are deemed to have been paid for all purposes of this Indenture.
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36
If payment at Stated Maturity of less than all of the Securities of
any series, or any Tranche thereof, is to be provided for in the manner and with
the effect provided in this Section, the [Trustee] shall select such Securities,
or portions of principal amount thereof, in the manner specified by Section 403
for selection for redemption of less than all the Securities of a series or
Tranche.
In the event that Securities which shall be deemed to have been paid
for purposes of this Indenture, and, if such is the case, in respect of which
the Company's indebtedness and the obligations of the Guarantor in respect
thereof shall have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60 day period
commencing with the date of the deposit of moneys or Eligible Obligations, as
aforesaid, the Company shall, as promptly as practicable, give a notice, in the
same manner as a notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has been made and the
effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid
for purposes of this Indenture, as aforesaid, the obligations of the Company,
the Guarantor and the Trustee in respect of such Securities under Sections 304,
305, 306, 403, 404, 406, 503 (as to notice of redemption), 602, 603, 907, 909,
910 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any Paying
Agent with which Eligible Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge imposed on or assessed
against such Eligible Obligations or the principal or interest received in
respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time
after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness and the
obligations of the Guarantor in respect thereof would be deemed to have been
satisfied or discharged, pursuant to this Section (without regard to the
provisions of this paragraph), the Trustee or any Paying Agent, as the case may
be, (i) shall be required to return the money or Eligible Obligations, or
combination thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy, insolvency or
other similar law, or (ii) are unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, such Security shall thereupon be deemed retroactively not to
have been paid and any satisfaction and discharge of the Company's indebtedness
and the obligations of the Guarantor in respect thereof shall retroactively be
deemed not to have been effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the Company's indebtedness
and the obligations of the Guarantor in respect of any Security shall be subject
to the provisions of the last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company or the Guarantor;
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37
provided, however, that if, in accordance with the last paragraph of
Section 701, any Security, previously deemed to have been paid for purposes of
this Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company, the Guarantor and the Trustee under
Sections 304, 305, 306, 403, 404, 406, 503 (as to notice of redemption), 602,
603, 907, 909, 910 and 915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall assign, transfer and turn over to the Company or to
the order of the Company, subject to the lien provided by Section 907, any and
all money, securities and other property then held by the Trustee for the
benefit of the Holders of the Securities other than money and Eligible
Obligations held by the Trustee pursuant to Section 703 and shall execute and
deliver to the Company and the Guarantor such instruments as, in the judgment of
the Company and the Guarantor, shall be necessary, desirable or appropriate to
effect or evidence the satisfaction and discharge of this Indenture.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant to
Section 701, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and such
Eligible Obligations and money deposited and the principal and interest payments
on any such Eligible Obligations shall be held in trust for, the payment of the
principal of and premium, if any, and interest, if any, on the Securities or
portions of principal amount thereof in respect of which such deposit was made,
all subject, however, to the provisions of Section 603; provided, however, that,
so long as there shall not have occurred and be continuing an Event of Default,
any cash received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent
practicable, be invested in Eligible Obligations of the type described in clause
(b) in the first paragraph of Section 701 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys and the proceeds
of any other Eligible Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due and to become due on
such Securities or portions thereof on and prior to the Maturity thereof, and
interest earned from such reinvestment shall be paid over to the Company or to
the order of the Company as received, free and clear of any trust, lien or
pledge under this Indenture except the lien provided by Section 907; and
provided, further, that, so long as there shall not have occurred and be
continuing an Event of Default, any moneys held in accordance with this Section
on the Maturity of all such Securities in excess of the amount required to pay
the principal of and premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company or to the order of the Company free
and clear of any trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if an Event of Default
shall have occurred and be continuing, moneys to be paid over to the Company or
to the order of the Company pursuant to this Section shall be held until such
Event of Default shall have been waived or cured.
<PAGE>
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ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events, subject to such additions and
exceptions as may be provided pursuant to Section 301:
(a) failure to pay interest, including any Additional Interest, if
any, on any Security of such series within 30 days after the same becomes
due and payable (whether or not payment is prohibited by the subordination
provisions of Article Fourteen or Article Fifteen hereof); provided,
however, that a valid extension of the interest payment period by the
Company as contemplated in Section 312 of this Indenture shall not
constitute a default in the payment of interest for this purpose; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series when it becomes due and payable (whether or not
payment is prohibited by the subordination provisions of Article Fourteen
or Article Fifteen hereof); or
(c) failure to perform, or breach of, any covenant or warranty of the
Company or the Guarantor in this Indenture (other than a covenant or
warranty a default in the performance of which or breach of which is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of one or more
series of Securities other than such series) and the continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company and Guarantor by the Trustee,
or to the Company, the Guarantor and the Trustee by the Holders of at least
33% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder,
unless the Trustee, or the Trustee and the Holders of a principal amount of
Securities of such series not less than the principal amount of Securities
the Holders of which gave such notice, as the case may be, shall agree in
writing to an extension of such period prior to its expiration; provided,
however, that the Trustee, or the Trustee and the Holders of such principal
amount of Securities of such series, as the case may be, shall be deemed to
have agreed to an extension of such period if corrective action is
initiated by the Company or the Guarantor within such period and is being
diligently pursued in good faith; or
(d) except as provided by the terms of this Indenture, the Securities
of such series and the Guarantees endorsed thereon, the cessation of
effectiveness of the Guarantee endorsed on a Security of such series or the
finding by any judicial proceeding that the Guarantee endorsed on a
Security of such series is unenforceable or invalid or the denial or
disaffirmation by the Guarantor of its obligations under the Guarantee
endorsed on a Security of such series; or
(e) the entry by a court having jurisdiction in the premises of (1) a
decree or order for relief in respect of the Company or the Guarantor in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (2) a decree
or order adjudging the Company or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other than
the Company or the Guarantor seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor
under any applicable Federal or State law, or appointing a custodian,
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39
receiver, liquidator, assignee, trustee, sequestrator or other similar
official for the Company or the Guarantor or for any substantial part of
its property, or ordering the winding up or liquidation of its affairs, and
any such decree or order for relief or any such other decree or order shall
have remained unstayed and in effect for a period of 90 consecutive days;
or
(f) the commencement by the Company or the Guarantor of a voluntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or the Guarantor to the entry of a decree or order for relief in
respect of the Company or the Guarantor in a case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or the Guarantor, or the filing by the
Company or the Guarantor of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by the Company or the Guarantor to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or the Guarantor or of any substantial part of its property, or the
making by the Company or the Guarantor of an assignment for the benefit of
creditors, or the admission by the Company or the Guarantor in writing of
its inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors of the Company or
the Guarantor; or
(g) any other Event of Default specified with respect to Securities of
such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default applicable to the Securities of one or more
series, but not applicable to all Outstanding Securities, shall have occurred
and be continuing, either the Trustee or the Holders of not less than 33% in
aggregate principal amount of the Securities of each such series may then
declare the principal amount of all Securities of such series (or, if any of the
Securities of such series are Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof as
contemplated by Section 301) and interest accrued thereon to be due and payable
immediately (provided that the payment of principal and interest on such
Securities shall remain subordinated to the extent provided in this Indenture),
by a notice in writing to the Company and the Guarantor (and to the Trustee if
given by Holders), and, upon receipt by the Company and the Guarantor of notice
of such declaration of acceleration, such principal amount (or specified amount)
and interest accrued thereon shall become immediately due and payable. If an
Event of Default applicable to all Outstanding Securities shall have occurred
and be continuing, either the Trustee or the Holders of not less than 33% in
principal amount of all Securities then Outstanding (considered as one class),
and not the Holders of the Securities of any one of such series, may declare the
principal of all Securities (or, if any of the Securities of such series are
Discount Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof as contemplated by Section 301) and
interest accrued thereon to be due and payable immediately (provided that the
payment of principal and interest on such Securities shall remain subordinated
to the extent provided in this Indenture), by a notice in writing to the Company
and the Guarantor (and to the Trustee if given by Holders), and, upon receipt by
the Company and the Guarantor of notice of such declaration of acceleration,
such principal amount (or specified amount) and interest accrued thereon shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such declaration of acceleration shall, without further act, be deemed to
<PAGE>
40
have been waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company or the Guarantor shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest (including Additional Interest), if any,
on all Securities of such series then Outstanding;
(2) the principal of and premium, if any, on any Securities of
such series then Outstanding which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) if, after application of money paid or deposited in accordance
with clause (a) of this Section 802, Securities of such series would remain
Outstanding, any other Event or Events of Default with respect to
Securities of such series, other than the non-payment of the principal of
Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as provided in
Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company or the Guarantor shall, upon
demand of the Trustee, pay to it, for the benefit of the Holders of the
Securities of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover any amounts due to the
Trustee under Section 907. Unless otherwise specified pursuant to Section 301
with respect to any series of Securities, the rate or rates at which Securities
shall bear interest on overdue principal, premium, interest and Additional
Interest, if any, shall be, to the extent permitted by law, the same rate or
rates at which such Securities shall bear interest prior to Maturity.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company and the Guarantor or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company and the Guarantor or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series shall
have occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
<PAGE>
41
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 804. 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 the Guarantor or any other
obligor upon the Securities or the property of the Company or Guarantor or of
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities 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 or the Guarantor for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of the
Securities 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 amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
or the Guarantees endorsed thereon may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, 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 in respect of which such
judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee 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, if any, upon presentation of the Securities in respect of
<PAGE>
42
which or for the benefit of which such money shall have been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 907;
SECOND: Subject to the provisions of Articles Fourteen and Fifteen,
the payment of the amounts then due and unpaid upon the Securities for
principal of and premium, if any, and interest (including Additional
Interest), if any, 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 Securities for
principal, premium, if any, and interest, if any, respectively; and
THIRD: To the Company or the Guarantor, as applicable.
SECTION 807. LIMITATION ON SUITS.
No Holder 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:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event of
Default shall have occurred and be continuing, considered as one class,
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
series in respect of which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to
Section 307 and 312) interest (including Additional Interest), if any, on such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
<PAGE>
43
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Guarantor and Trustee
and such Holder shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal amount
of the Outstanding Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, shall
have the right to make such direction, and not the Holders of the Securities of
any one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's sole
discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
<PAGE>
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SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or interest
(including Additional Interest), if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected;
provided, however, that so long as a Trust holds the Securities of any series,
such Trust may not waive any past default without the consent of a majority (or
such greater percentage as shall be required by the Trust Agreement pertaining
to such Trust) in aggregate liquidation preference of the outstanding Preferred
Securities issued by such Trust affected, obtained as provided in the Trust
Agreement pertaining to such Trust. Any such waiver by holders of a majority in
aggregate liquidation preference of outstanding Preferred Securities issued by
any such Trust shall be deemed to be on behalf of all holders of Preferred
Securities issued by any such Trust.
Upon any such waiver, such default shall cease to exist, and any and
all Events 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 814. UNDERTAKING FOR COSTS.
The Company, the Guarantor and the Trustee agree, and each Holder by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the Company
or the Guarantor, to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities of all series in
respect of which such suit may be brought, considered as one class, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of or premium, if any, or interest, if any, on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF USURY, STAY OR EXTENSION LAWS.
Each of the Company and the Guarantor 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 usury, stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (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 such power as
though no such law had been enacted.
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ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to Securities of any series,
(i) the Trustee undertakes to perform, with respect to Securities
of such series, 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
(ii) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, 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 provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee shall exercise,
with respect to the Securities of such series, such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) 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;
(iii) 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 Securities of any one or more series, as provided herein,
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to
the Securities of such series; and
(iv) 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.
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(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with respect to
the Securities of any series to the Holders of Securities of such series in the
manner and to the extent required to do so by the Trust Indenture Act, unless
such default shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c), no such notice
to Holders shall be given until at least 45 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 the Securities of such series.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(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, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order, or a Guarantor Request or Guarantor Order, as the case may be, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors of the Company or the Guarantor may be sufficiently evidenced by
a Board Resolution thereof;
(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 Officer's Certificate of the Company or the
Guarantor, as appropriate;
(d) the Trustee may consult with counsel of its selection 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 Holder pursuant to this Indenture, unless such Holder 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, note, other evidence of indebtedness 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
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47
Trustee shall determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) with prior notice to the
Company and the Guarantor be entitled to examine, during normal business
hours, the books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) except as otherwise provided in Section 801, the Trustee shall not
be charged with knowledge of any Event of Default with respect to the
Securities of any series for which it is acting as Trustee unless either
(1) a Responsible Officer of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event of Default shall have
been given to the Trustee by the Company, Guarantor or any other obligor on
such Securities or by any Holder of such Securities;
(i) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities and the Guarantees
endorsed thereon (except the Trustee's certificates of authentication) shall be
taken as the statements of the Company and the Guarantor, as the case may be,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or the Guarantees endorsed
thereon. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, the Guarantor or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities [and/or Preferred Securities] and, subject to Sections 908
and 913, may otherwise deal with the Company or the Guarantor with the same
rights it would have if it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 906. 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 or investment of any money received by it
hereunder except as expressly provided herein or otherwise agreed with, and for
the sole benefit of, the Company or the Guarantor.
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SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(a) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as the Company and the Trustee shall from
time to time agree in writing (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably 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 to the extent
that any such expense, disbursement or advance may be attributable to the
Trustee's negligence, willful misconduct or bad faith; and
(c) to indemnify the Trustee and hold it harmless from and 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 the trust or trusts hereunder or the performance of its
duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent
any such loss, liability or expense may be attributable to its negligence,
willful misconduct or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such other than
property and funds held in trust under Section 703 (except as otherwise provided
in Section 703). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the negligence, willful misconduct
or bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 801(d) or Section 801(e), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 907 shall survive the termination of
this Indenture.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest within
the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
the Indenture, dated as of June 1, 1999, between FPL Group Capital and The Bank
of New York, as trustee, the Guarantee Agreement, dated as of June 1, 1999,
between the Guarantor, as guarantor and The Bank of New York, as guarantee
trustee, the Purchase Contract Agreement, dated as of February 1, 2002, between
the Guarantor and The Bank of New York, as purchase contract agent,
attorney-in-fact and trustee, the Purchase Contract Agreement, dated as of
June 1, 2002, between the Guarantor and The Bank of New York, as purchase
contract agent, attorney-in-fact and trustee, the Trust Agreement and the
Preferred Trust Securities Guarantee Agreement and such agreements and the
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49
Securities of any other series or the Guarantees endorsed thereon shall be
deemed to be specifically described in this Indenture for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a Corporation organized and doing business under the laws of the
United States, any State or Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a Corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section and the Trust Indenture Act, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 910. 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 in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company and
the Guarantor. If the instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee, the Company and the Guarantor [; provided that so long as any
Preferred Securities remain outstanding, the Trust which issued such
Preferred Securities shall not execute any Act to remove the Trustee
without the consent of the holders of a majority in aggregate liquidation
preference of Preferred Securities issued by such Trust outstanding,
obtained as provided in the Trust Agreement pertaining to such Trust].
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 908 after written
request therefor by the Company, the Guarantor or by any Holder who has
been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909 or
Section 310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company, the Guarantor or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company and the Guarantor by Board Resolutions
may remove the Trustee with respect to all Securities or (y) subject to
Section 814, any Holder who has been a bona fide Holder for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
(other than as contemplated in clause (y) in subsection (d) of this
Section), with respect to the Securities of one or more series, the Company
and the Guarantor, by Board Resolutions, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time (subject to Section 914) there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company and the Guarantor. If no successor Trustee
with respect to the Securities of any series shall have been so appointed
by the Company and the Guarantor or the Holders and accepted appointment in
the manner required by Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) So long as no event which is, or after notice or lapse of time, or
both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company and the
Guarantor shall have delivered to the Trustee (i) Board Resolutions
appointing a successor Trustee, effective as of a date specified therein,
and (ii) an instrument of acceptance of such appointment, effective as of
such date, by such successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in subsection (b)
of this Section, the successor Trustee shall be deemed to have been
appointed by the Company and the Guarantor pursuant to subsection (e) of
this Section and such appointment shall be deemed to have been accepted as
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contemplated in Section 911, all as of such date, and all other provisions
of this Section and Section 911 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with this
subsection (f).
(g) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company, the
Guarantor 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, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company, the
Guarantor or the successor Trustee, such retiring Trustee shall, upon
payment of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the Guarantor the retiring Trustee and each successor Trustee with respect
to the Securities of such series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Company, the Guarantor or any successor Trustee, such retiring Trustee,
upon payment of all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company and the
Guarantor shall execute any instruments which fully vest in and confirm to
such successor Trustee all such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Corporation or other Person 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 the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company, the
Guarantor or any other obligor upon the Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act), the
Trustee shall be subject to any and all applicable provisions of the Trust
Indenture Act regarding the collection of claims against the Company, the
Guarantor or such other obligor. For purposes of Section 311(b) of the Trust
Indenture Act:
(a) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company, the Guarantor or such obligor 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, the Guarantor or such obligor
arising from the making, drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company, the Guarantor and the
Trustee shall have power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 33% in principal amount of the Securities
then Outstanding, the Company and the Guarantor shall for such purpose join with
the Trustee in the execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Trustee
either to act as co-trustee, jointly with the Trustee, or to act as separate
trustee, in either case with such powers as may be provided in the instrument of
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53
appointment, and to vest in such Person or Persons, in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company or the Guarantor does not
join in such appointment within 15 days after the receipt by it of a request so
to do, or if an Event of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument or instruments from the Company or the
Guarantor be required by any co-trustee or separate trustee to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company or the Guarantor, as the case may be.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed
either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(c) the Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Company and the Guarantor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the concurrence of
the Company or the Guarantor. Upon the written request of the Trustee, the
Company and the Guarantor shall join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Trustee, or any other such
trustee hereunder, and the Trustee shall not be personally liable by reason
of any act or omission of any such co-trustee or separate trustee; and
(e) any Act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents acceptable
to the Company with respect to the Securities of one or more series, or any
Tranche thereof, which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series or Tranche, and any Guarantee to be
endorsed thereon, issued upon original issuance, exchange, registration of
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transfer or partial redemption thereof or pursuant to Section 306, and
Securities, and any Guarantees endorsed thereon, so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities or the
Guarantee by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and the Guarantor and
shall at all times be a Corporation organized and doing business under the laws
of the United States, any State or Territory thereof or the District of Columbia
or the Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee, the Company and the Guarantor. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent, the Company and the Guarantor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and the Guarantor.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternative certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
<PAGE>
55
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------
As Authenticating Agent
By:
------------------------------------
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE. COMPANY AND GUARANTOR
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December 1 in each year,
commencing __________ 1, 200__, and at such other times as the Trustee may
request in writing, the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the Holders, and the
Trustee shall preserve such information and similar information received by it
in any other capacity and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however, that no such list need
be furnished so long as the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE, COMPANY AND GUARANTOR.
Not later than July 15 in each year, commencing July 15, 200__, the
Trustee shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, a report, dated as of the next
preceding April 15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall transmit to the Holders,
the Commission and each securities exchange upon which any Securities are
listed, and the Company and the Guarantor, as the case requires, shall file with
the Trustee (within 30 days after filing with the Commission in the case of
reports which pursuant to the Trust Indenture Act must be filed with the
Commission and furnished to the Trustee) and transmit to the Holders, such other
information, reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act. The Company shall
notify the Trustee of the listing of any Securities on any securities exchange
or of the delisting thereof.
<PAGE>
56
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Neither the Company nor the Guarantor shall consolidate with or merge
into any other entity, or convey or otherwise transfer or lease its properties
and assets substantially as an entirety to any Person, unless
(a) the Person formed by such consolidation or into which the Company
or the Guarantor, as the case may be, is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company or the Guarantor, as the case may be, substantially
as an entirety shall be a Person organized and existing under the laws of
the United States, any State thereof or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any, and interest, if
any, on all Outstanding Securities (or the Guarantees endorsed thereon, as
the case may be) and the performance of every covenant of this Indenture on
the part of the Company or the Guarantor, as the case may be, to be
performed or observed;
(b) 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 occurred and be continuing; and
(c) the Company or the Guarantor, as the case may be, shall have
delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, or other
transfer or lease and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transactions have been complied with.
SECTION 1102. SUCCESSOR ENTITY SUBSTITUTED.
Upon any consolidation by the Company or the Guarantor with or merger
by the Company or the Guarantor into any other Person or any conveyance, or
other transfer or lease of the properties and assets of the Company or the
Guarantor substantially as an entirety in accordance with Section 1101, the
successor Person formed by such consolidation or into which the Company or the
Guarantor, as the case may be, is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor, as the case may
be, under this Indenture with the same effect as if such successor Person had
been named as the Company or the Guarantor, as the case may be, herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities Outstanding hereunder (or the Guarantees endorsed thereon, as the
case may be).
SECTION 1103. LIMITATION.
Nothing in this Indenture shall be deemed to prevent or restrict:
(a) any consolidation or merger after the consummation of which the
Company or the Guarantor would be the surviving or resulting entity,
<PAGE>
57
(b) any consolidation of the Company with the Guarantor or any other
Person all of the outstanding voting securities of which are owned,
directly or indirectly, by the Guarantor; or any merger of any of such
Persons into any other of such Persons; or any conveyance or other
transfer, or lease, of its properties substantially as an entirety by any
thereof to any other thereof,
(c) any conveyance or other transfer, or lease, of any part of the
properties and/or assets of the Company or the Guarantor which does not
constitute the entirety, or substantially the entirety, of its properties
and assets,
(d) the approval by the Company or the Guarantor of, or the consent by
the Company or the Guarantor to, any consolidation or merger to which any
direct or indirect subsidiary or affiliate of the Company or the Guarantor,
as the case requires, may be a party or any conveyance, transfer or lease
by any such subsidiary or affiliate of any of its properties or assets, or
(e) any other transaction not contemplated by Section 1101.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, the Guarantor and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the Company or the
Guarantor, as the case may be, and the assumption by any such successor of
the covenants of the Company or the Guarantor, as the case may be, herein
and in the Securities or the Guarantees endorsed thereon, all as provided
in Article Eleven; or
(b) to add one or more covenants of the Company or the Guarantor or
other provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or one or more
specified Tranches thereof, or to surrender any right or power herein
conferred upon the Company or Guarantor; or
(c) to add any additional Events of Default with respect to all or any
series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of the
Holders of Securities of any series or Tranche Outstanding on the date of
such indenture supplemental hereto in any material respect, such change,
elimination or addition shall become effective (i) with respect to such
series or Tranche only pursuant to the provisions of Section 1202 hereof or
(ii) when no Security of such series or Tranche remains Outstanding; or
(e) to provide collateral security for all but not part of the
Securities; or
<PAGE>
58
(f) to establish the form or terms of Securities of any series or
Tranche or any Guarantees as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if any,
thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the solicitation
of the vote or consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee or co-trustee with respect to
the Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit the Company to
utilize, at its option, a non-certificated system of registration for all,
or any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or upon the
Company or the Guarantor in respect of all or any series of Securities, or
any Tranche thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other changes to the provisions hereof or to add
other provisions with respect to matters or questions arising under this
Indenture, provided that such other changes or additions shall not
adversely affect the interests of the Holders of Securities of any series
or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to
any provisions hereof or the inclusion herein of any additional
provisions, or shall by operation of law be deemed to effect such
changes or incorporate such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended so as to conform to
such amendment to the Trust Indenture Act, and the Company, the
Guarantor and the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to effect or evidence such
changes or additional provisions; or
(y) if any such amendment shall permit one or more changes to, or
the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof or at any time thereafter, are required
by the Trust Indenture Act to be contained herein, this Indenture
shall be deemed to have been amended to effect such changes or
elimination, and the Company, the Guarantor and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to evidence such amendment hereof.
<PAGE>
59
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in aggregate principal
amount of the Securities of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company and the Guarantor, when authorized by
Board Resolutions, 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 modifying
in any manner the rights of the Holders of Securities of such series under the
Indenture; provided, however, that if there shall be Securities of more than one
series Outstanding hereunder and if a proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one or more, but less
than all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been issued in more
than one Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such Tranches, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on (except as provided in
Section 312 hereof), any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating
such rate or reduce any premium payable upon the redemption thereof,
or reduce the amount of the principal of a Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, or change the coin or
currency (or other property), in which any Security or any premium 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 of any Security (or, in the case of redemption, on or after
the Redemption Date), or impair the right to receive payments under
the Guarantee or to institute suit for the enforcement of any such
payment under the Guarantee, without, in any such case, the consent of
the Holder of such Security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section
1304 for quorum or voting, without, in any such case, the consent of
the Holders of each Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813 with respect to the Securities of any series, or any
Tranche thereof, or except to increase the percentages in principal
amount referred to in this Section or such other Sections or to
provide that other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Sections 911(b), 914 and 1201(h).
Notwithstanding the foregoing, so long as any of the Preferred
Securities remain outstanding, the Trustee may not consent to a supplemental
indenture under this Section 1202 without the prior consent, obtained as
provided in a Trust Agreement pertaining to a Trust which issued such Preferred
<PAGE>
60
Securities, of the holders of a majority in aggregate liquidation preference of
all Preferred Securities issued by such Trust affected, considered as one class,
or, in the case of changes described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred Securities then
outstanding which would be affected thereby, considered as one class.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof. A waiver by a
Holder of such Holder's right to consent under this Section shall be deemed to
be a consent of such Holder.
SECTION 1203. 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 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by this Article may
restate this Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, 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 and the Guarantor shall so determine, new Securities
of any series, or any Tranche thereof, so modified as to conform, in the opinion
of the Trustee, the Company and the Guarantor, to any such supplemental
indenture may be prepared and executed by the Company with the Guarantees
endorsed thereon and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
<PAGE>
61
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officer's Certificate pursuant to a
Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and accepted in writing by, the
Trustee; provided, however, that such supplemental Board Resolution or Officer's
Certificate shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required to be
satisfied if such additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Board Resolution or
Officer's Certificate shall be deemed to be a "supplemental indenture" for
purposes of Sections 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, New
York as the Trustee shall determine, or, with the approval of the Company
and the Guarantor, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, by the Company, the Guarantor or by the Holders of 33% in
aggregate principal amount of all of such series and Tranches, considered
as one class, for any purpose specified in Section 1301, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the
Company, the Guarantor or the Holders of Securities of such series and
Tranches in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York,
or in such other place as shall be determined or approved by the Company or
the Guarantor, for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice
<PAGE>
62
if the Holders of all Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the Company, the
Guarantor and the Trustee are present, or if notice is waived in writing
before or after the meeting by the Holders of all Outstanding Securities of
such series, or any Tranche or Tranches thereof, or by such of them as are
not present at the meeting in person or by proxy, and by the Company, the
Guarantor and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series or Tranches,
or (b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company, the Guarantor and their
counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any meeting adjourned for more
than 30 days shall be given as provided in Section 1302(a) not less than 10 days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
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63
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the Securities
with respect to which it was given unless and until specifically revoked by
the Holder or future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to proof of the holding of
such Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or the Guarantor or by Holders as provided in
Section 1302(b), in which case the Company or the Guarantor or the Holders
of Securities of the series and Tranches calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches with respect
to which the meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
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shall make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record in triplicate of the
proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to each of the Company, the Guarantor, and the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated
in this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
ARTICLE FOURTEEN
GUARANTEE
SECTION 1401. GUARANTEE.
Subject to the terms of this Article, the Guarantor hereby
unconditionally and irrevocably guarantees to each Holder of a Security
authenticated and delivered by the Trustee, and to the Trustee on behalf of such
Holder, the due and punctual payment of the principal of, and premium, if any,
and interest (including any Additional Interest), if any, on the Securities of
such series when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption, or
otherwise, in accordance with the terms of such Security and of this Indenture,
regardless of any defense, right of set-off or counterclaim that the Guarantor
may have (except the defense of payment). In case of the failure of the Company
punctually to make any such payment, the Guarantor hereby agrees to cause such
payment to be made punctually when and as the same shall become due and payable,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise, and as if such payment were made by the Company. The
Guarantor's obligation to make a guarantee payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holder of the Security
or to a Paying Agent, or by causing the Company to pay such amount to such
Holder or a Paying Agent.
The Guarantor hereby agrees that its payment obligations hereunder
shall be absolute and unconditional irrespective of, and shall be unaffected by,
any invalidity, irregularity or unenforceability of such Security or this
Indenture, any failure to enforce the provisions of such Security or this
Indenture, or any waiver, modification or indulgence granted to the Company with
respect thereto (except that the Guarantor will have the benefit of any waiver,
modification or indulgence granted to the Company in accordance with this
Indenture), by the Holder of such Security or the Trustee or any other
circumstance which may otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor; provided, however, that notwithstanding the
foregoing, no such waiver, modification or indulgence shall, without the consent
of the Guarantor, increase the principal amount of such Security, or increase
the interest rate thereon (including any Additional Interest), or change any
redemption provisions thereof (including any change to increase any premium
payable upon redemption thereof), or change the Stated Maturity thereof, or
increase the principal amount of any Discount Security that would be due and
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payable upon a declaration of acceleration or the maturity thereof pursuant to
Article Eight of this Indenture.
The Guarantor hereby waives the benefits of diligence, presentment,
demand for payment, any requirement that the Trustee or any of the Holders
exhaust any right or take any action against the Company or any other Person,
the filing of claims with a court in the event of insolvency or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to any Security or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee will not
be discharged in respect of any Security except by complete performance of the
payment obligations contained in such Security and in this Guarantee. This
Guarantee shall constitute a guaranty of payment and not of collection. The
Guarantor hereby agrees that, in the event of a default in payment of principal,
or premium, if any, or interest, if any, on any Security, whether at its Stated
Maturity, by declaration of acceleration, call for redemption, or otherwise,
legal proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such Security, subject to the terms and conditions set forth in this
Indenture, directly against the Guarantor to enforce this Guarantee without
first proceeding against the Company.
The obligations of the Guarantor hereunder with respect to any
Security shall be continuing and irrevocable until the date upon which the
entire principal of, premium, if any, and interest (including Additional
Interest), if any, on such Security has been, or has been deemed pursuant to the
provisions of Article Seven of this Indenture to have been, paid in full or
otherwise discharged.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Guarantee is endorsed against the Company in respect
of any amounts paid by the Guarantor on account of such Securities pursuant to
the provisions of its Guarantee or this Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of, and
premium, if any, and interest, if any, on all Securities issued hereunder which
then are due and payable shall have been paid in full.
This Guarantee shall remain in full force and effect and continue
notwithstanding any petition filed by or against the Company for liquidation or
reorganization, the Company becoming insolvent or making an assignment for the
benefit of creditors or a receiver or trustee being appointed for all or any
significant part of the Company's property and assets, and shall, to the fullest
extent permitted by law, continue to be effective or reinstated, as the case may
be, if at any time payment of any Security upon which this Guarantee is
endorsed, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any Holder of such Security, whether
as a "voidable preference," "fraudulent transfer," or otherwise, all as though
such payment or performance had not been made. In the event that any such
payment, or any part thereof, is rescinded, reduced, restored or returned on a
Security, such Security shall, to the fullest extent permitted by law, be
reinstated and deemed paid only by such amount paid and not so rescinded,
reduced, restored or returned.
SECTION 1402. GUARANTEE SUBORDINATE TO SENIOR INDEBTEDNESS OF THE GUARANTOR.
The Guarantor, for itself, its successors and assigns, covenants and
agrees, and each Holder of the Securities of each series, by its acceptance
thereof, likewise covenants and agrees, that the payment under the Guarantee of
the principal of and premium, if any, and interest (including any Additional
Interest), if any, on each and all of the Securities is hereby expressly
subordinated and junior in right of payment and subject, to the extent and in
the manner set forth in this Article, in right of payment to the prior payment
in full of all Senior Indebtedness of the Guarantor.
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Each Holder of the Securities of each series, by its acceptance
thereof, authorizes and directs the Trustee on its behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1403. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy proceedings or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Guarantor or a substantial part of its property and assets, or of
any proceedings for liquidation, dissolution or other winding up of the
Guarantor, whether or not involving insolvency or bankruptcy, or (b) subject to
the provisions of Section 1404, that (i) a default shall have occurred with
respect to the payment of principal of or interest on or other monetary amounts
due and payable on any Senior Indebtedness of the Guarantor, or (ii) there shall
have occurred a default (other than a default in the payment of principal or
interest or other monetary amounts due and payable) in respect of any Senior
Indebtedness of the Guarantor, as defined therein or in the instrument under
which the same is outstanding, permitting the holder or holders thereof, or any
other Person on its or their behalf to accelerate the payment or maturity
thereof (with notice or lapse of time, or both), and such default shall have
continued beyond the period of grace, if any, in respect thereof, and, in the
cases of subclauses (i) and (ii) of this clause (b), such default shall not have
been cured or waived or shall not have ceased to exist, or (c) that the
principal of and/or premium, if any, and/or accrued interest (including
Additional Interest) on the Securities of any series shall have been declared
due and payable pursuant to Section 801 and such declaration shall not have been
rescinded and annulled as provided in Section 802, then:
(1) the holders of all Senior Indebtedness of the Guarantor shall
first be entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money's worth, before
the Holders of any of the Securities are entitled to receive a payment on
account of the Guarantee of the principal of, premium, if any, or interest
on the indebtedness evidenced by the Securities, including, without
limitation, any payments made pursuant to Articles Four and Five;
(2) any payment by, or distribution of property or assets of, the
Guarantor of any kind or character, whether in cash, property or
securities, to which any Holder or the Trustee would be entitled except for
the provisions of this Article, shall be paid or delivered by the Person
making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of
such Senior Indebtedness of the Guarantor or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness of the
Guarantor may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of such Senior Indebtedness of the Guarantor
held or represented by each, to the extent necessary to make payment in
full of all Senior Indebtedness of the Guarantor remaining unpaid after
giving effect to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness of the Guarantor,
before any payment or distribution is made to the Holders of the
indebtedness evidenced by the Securities or to the Trustee under the
Guarantee and this Indenture; and
(3) in the event that, notwithstanding the foregoing, any payment by,
or distribution of property or assets of, the Guarantor of any kind or
character, whether in cash, property or securities, in respect of principal
of, premium, if any, or interest on the Securities or in connection with
any repurchase by the Guarantor of the Securities, shall be received by the
Trustee or any Holder before all Senior Indebtedness of the Guarantor is
paid in full, or provision is made for such payment in money or money's
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worth, such payment or distribution in respect of principal of, premium, if
any, or interest on the Securities or in connection with any repurchase by
the Guarantor of the Securities shall be paid over to the holders of such
Senior Indebtedness of the Guarantor or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any such Senior Indebtedness of the
Guarantor may have been issued, ratably as aforesaid, for application to
the payment of all Senior Indebtedness of the Guarantor remaining unpaid
until all such Senior Indebtedness of the Guarantor shall have been paid in
full, after giving effect to any concurrent payment or distribution (or
provision therefor) to the holders of such Senior Indebtedness of the
Guarantor.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Eligible Obligations pursuant to
Section 701 or 702 (provided all conditions set out in such Section shall have
been satisfied), the funds so deposited and any interest thereon will not be
subject to any rights of holders of Senior Indebtedness of the Guarantor
including, without limitation, those arising under this Article Fourteen;
provided that no event described in clauses (e) and (f) of Section 801 with
respect to the Guarantor has occurred during such 123-day period.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Guarantor as
reorganized or readjusted, or securities of the Guarantor or any other
Corporation provided for by a plan of reorganization or readjustment which are
subordinate in right of payment to all Senior Indebtedness of the Guarantor
which may at the time be outstanding to the same extent as, or to a greater
extent than, the Guarantee of the Securities are so subordinated as provided in
this Article. The consolidation of the Guarantor with, or the merger of the
Guarantor into, another Corporation or the liquidation or dissolution of the
Guarantor following the conveyance or transfer of its property and assets as an
entirety, or substantially as an entirety, to another Person upon the terms and
conditions provided for in Article Eleven hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 1403 if such other Corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Eleven hereof. Nothing in Section 1402 or in this Section 1403 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 907.
SECTION 1404. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS OF
THE GUARANTOR.
Any failure by the Guarantor to make any payment on or perform any
other obligation in respect of Senior Indebtedness of the Guarantor, other than
any indebtedness incurred by the Guarantor or assumed or guaranteed, directly or
indirectly, by the Guarantor for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Guarantor in the
instrument or instruments by which the Guarantor incurred, assumed, guaranteed
or otherwise created such indebtedness or obligation, shall not be deemed a
default under clause (b) of Section 1403 if (i) the Guarantor shall be disputing
its obligation to make such payment or perform such obligation and (ii) either
(A) no final judgment relating to such dispute shall have been issued against
the Guarantor which is in full force and effect and is not subject to further
review, including a judgment that has become final by reason of the expiration
of the time within which a party may seek further appeal or review, or (B) in
the event that a judgment that is subject to further review or appeal has been
issued, the Guarantor shall in good faith be prosecuting an appeal or other
proceeding for review and a stay or execution shall have been obtained pending
such appeal or review.
SECTION 1405. SUBROGATION.
Senior Indebtedness of the Guarantor shall not be deemed to have been
paid in full unless the holders thereof shall have received cash (or securities
or other property satisfactory to such holders) in full payment of such Senior
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Indebtedness of the Guarantor then outstanding. Upon the payment in full of all
Senior Indebtedness of the Guarantor, the rights of the Holders of the
Securities shall be subrogated to the rights of the holders of Senior
Indebtedness of the Guarantor to receive any further payments or distributions
of cash, property or securities of the Guarantor applicable to the holders of
the Senior Indebtedness of the Guarantor until all amounts owing on the
Securities shall be paid in full; and such payments or distributions of cash,
property or securities received by the Holders of the Securities, by reason of
such subrogation, which otherwise would be paid or distributed to the holders of
such Senior Indebtedness of the Guarantor shall, as between the Guarantor, its
creditors other than the holders of Senior Indebtedness of the Guarantor, and
the Holders, be deemed to be a payment by the Guarantor to or on account of
Senior Indebtedness of the Guarantor, it being understood that the provisions of
this Article are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of the Senior
Indebtedness of the Guarantor, on the other hand.
SECTION 1406. OBLIGATION OF THE GUARANTOR UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this Indenture or in
the Guarantee is intended to or shall impair, as among the Guarantor, its
creditors other than the holders of Senior Indebtedness of the Guarantor and the
Holders, the obligation of the Guarantor, which is absolute and unconditional,
to pay to the Holders, pursuant to the terms of the Guarantee, the principal of,
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the Guarantor
other than the holders of Senior Indebtedness of the Guarantor, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness of the Guarantor in respect of cash, property or securities
of the Guarantor received upon the exercise of any such remedy.
Upon any payment or distribution of cash, property or securities of
the Guarantor referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization proceedings
are pending for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness of the Guarantor
and other indebtedness of the Guarantor, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon, and all other facts pertinent
thereto or to this Article.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Guarantor (or a representative of such holder or a trustee
under any indenture under which any instruments evidencing any such Senior
Indebtedness of the Guarantor may have been issued) to establish that such
notice has been given by a holder of such Senior Indebtedness of the Guarantor
or such representative or trustee on behalf of such holder. In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of the
Guarantor or its representative or representatives or the trustee or trustees
under any indenture under which any instruments evidencing any such Senior
Indebtedness of the Guarantor may have been issued to participate in any payment
or distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness of the Guarantor held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the right of such Person under this Article, and, if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment or distribution.
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SECTION 1407. PRIORITY OF SENIOR INDEBTEDNESS OF THE GUARANTOR UPON MATURITY.
Upon the maturity of the principal of any Senior Indebtedness of the
Guarantor by lapse of time, acceleration or otherwise, all matured principal of
Senior Indebtedness of the Guarantor and interest, premium and other payment
obligation, if any, thereon shall first be paid in full before any payment of
principal or premium, if any, or interest, if any, is made upon the Securities
under the Guarantee.
SECTION 1408. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS OF THE GUARANTOR.
The Trustee shall be entitled to all rights set forth in this Article
with respect to any Senior Indebtedness of the Guarantor at any time held by it,
to the same extent as any other holder of Senior Indebtedness of the Guarantor.
Nothing in this Article shall deprive the Trustee of any of its rights as such
holder.
SECTION 1409. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of moneys
to or by the Trustee unless and until the Trustee shall have received written
notice thereof from the Guarantor, from a Holder or from a holder of any Senior
Indebtedness of the Guarantor or from any representative or representatives of
such holder or any trustee or trustees under any indenture under which any
instruments evidencing any such Senior Indebtedness of the Guarantor may have
been issued and, prior to the receipt of any such written notice, the Trustee
shall be entitled, subject to Section 901, in all respects to assume that no
such facts exist; provided, however, that, if prior to the fifth Business Day
preceding the date upon which by the terms of this Indenture any such moneys may
become payable for any purpose, or in the event of the execution of an
instrument pursuant to Section 701 or 702 acknowledging that Securities or
portions thereof are deemed to have been paid for all purposes of this
Indenture, acknowledging that the entire indebtedness of the Company and the
Guarantor in respect thereof has been satisfied and discharged or acknowledging
satisfaction and discharge of this Indenture, then if prior to the second
Business Day preceding the date of such execution, the Trustee shall not have
received with respect to such moneys the notice provided for in this Section,
then, anything herein contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary, which may be received by it on or after such date; provided, however,
that no such application shall affect the obligations under this Article of the
Persons receiving such moneys from the Trustee.
SECTION 1410. MODIFICATION, EXTENSION, ETC. OF SENIOR INDEBTEDNESS OF THE
GUARANTOR.
The holders of Senior Indebtedness of the Guarantor or their
representative or representatives and/or the trustee or trustees under any
indenture under which any instruments evidencing any such Senior Indebtedness of
the Guarantor may have been issued may, without affecting in any manner the
subordination of the payment of the principal of and premium, if any, and
interest, if any, on the Securities under the Guarantee, at any time or from
time to time and in their absolute discretion, agree with the Guarantor to
change the manner, place or terms of payment, change or extend the time of
payment of, or renew or alter, any Senior Indebtedness of the Guarantor, or
amend or supplement any instrument pursuant to which any Senior Indebtedness of
the Guarantor is issued, or exercise or refrain from exercising any other of
their rights under the Senior Indebtedness of the Guarantor including, without
limitation, the waiver of default thereunder, all without notice to or assent
from the Holders or the Trustee.
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SECTION 1411. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR INDEBTEDNESS OF
THE GUARANTOR.
With respect to the holders of Senior Indebtedness of the Guarantor,
the Trustee undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
the Guarantor shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Guarantor, and shall not be liable to any such holders if it
shall mistakenly pay over or deliver to the Holders or the Guarantor or any
other Person, money or assets to which any holders of Senior Indebtedness of the
Guarantor shall be entitled by virtue of this Article or otherwise.
SECTION 1412. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Guarantor and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1408, 1409 and 1411 shall not apply to the Guarantor if it acts as
Paying Agent.
SECTION 1413. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS OF THE GUARANTOR NOT
IMPAIRED.
No right of any present or future holder of Senior Indebtedness of the
Guarantor to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Guarantor
or by any noncompliance by the Guarantor with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
SECTION 1414. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the contrary, other than
as provided in the immediately succeeding sentence, all the provisions of this
Indenture shall be subject to the provisions of this Article, so far as the same
may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fourteen shall be of no further effect, and the
Guarantee shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness of the Guarantor, if, and to the extent, the
Guarantor shall have delivered to the Trustee a notice to such effect. Any such
notice delivered by the Guarantor shall not be deemed to be a supplemental
indenture for purposes of Article Twelve.
SECTION 1415. EXECUTION AND DELIVERY OF GUARANTEE.
The Guarantee to be endorsed on the Securities of each series shall
include a summary of the terms of the Guarantee set forth in Sections 1401 and
1402 and any other terms, including exceptions to such Guarantee, that may be
set forth as established pursuant to Section 301. The Guarantor hereby agrees to
execute its Guarantee, in a form established pursuant to Section 201, to be
endorsed on each Security authenticated and delivered by the Trustee.
The Guarantee shall be executed on behalf of the Guarantor by an
Authorized Officer of the Guarantor. The signature of any such officer on the
Guarantee may be manual or facsimile.
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A Guarantee bearing the manual or facsimile signature of an
individual who was at the time of execution an Authorized Officer of the
Guarantor shall bind the Guarantor, notwithstanding that any such individual has
ceased to be an Authorized Officer prior to the authentication and delivery of
the Security on which such Guarantee is endorsed or was not an Authorized
Officer at the date of such Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
Guarantee set forth in this Article Fourteen (and as established pursuant to
Section 301) shall remain in full force and effect notwithstanding any failure
to endorse a Guarantee on any Security.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS OF THE COMPANY.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of the Securities of each series, by its acceptance
thereof, likewise covenants and agrees, that the payment of the principal of and
premium, if any, and interest ( including any Additional Interest), if any, on
each and all of the Securities is hereby expressly subordinated and junior in
right of payment, and subject, to the extent and in the manner set forth in this
Article, in right of payment to the prior payment in full of all Senior
Indebtedness of the Company.
Each Holder of the Securities of each series, by its acceptance
thereof, authorizes and directs the Trustee on its behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy proceedings or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or a substantial part of its property and assets, or of
any proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 1503, that (i) a default shall have occurred with respect
to the payment of principal of or interest on or other monetary amounts due and
payable on any Senior Indebtedness of the Company, or (ii) there shall have
occurred a default (other than a default in the payment of principal or interest
or other monetary amounts due and payable) in respect of any Senior Indebtedness
of the Company, as defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof, or any other Person on
its or their behalf to accelerate the maturity thereof (with notice or lapse of
time, or both), and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of subclauses (i) and (ii)
of this clause (b), such default shall not have been cured or waived or shall
not have ceased to exist, or (c) that the principal of and/or premium, if any,
and/or accrued interest (including Additional Interest), if any, on the
Securities of any series shall have been declared due and payable pursuant to
Section 801 and such declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior Indebtedness of the Company shall first
be entitled to receive payment of the full amount due thereon, or provision
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shall be made for such payment in money or money's worth, before the
Holders of any of the Securities are entitled to receive a payment on
account of the principal of, premium if any, or interest on the
indebtedness evidenced by the Securities, including, without limitation,
any payments made pursuant to Articles Four and Five;
(2) any payment by, or distribution of property or assets of, the
Company of any kind or character, whether in cash, property or securities,
to which any Holder or the Trustee would be entitled except for the
provisions of this Article, shall be paid or delivered by the Person making
such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of such Senior
Indebtedness of the Company or their representative or representatives or
to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness of the Company may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of such Senior Indebtedness of the Company held or represented by
each, to the extent necessary to make payment in full of all Senior
Indebtedness of the Company remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders
of such Senior Indebtedness of the Company, before any payment or
distribution is made to the Holders of the indebtedness evidenced by the
Securities or to the Trustee under this Indenture; and
(3) in the event that, notwithstanding the foregoing, any payment by,
or distribution of property or assets of, the Company of any kind or
character, whether in cash, property or securities, in respect of principal
of, or premium, if any, or interest on the Securities or in connection with
any repurchase by the Company of the Securities, shall be received by the
Trustee or any Holder before all Senior Indebtedness of the Company is paid
in full, or provision is made for such payment in money or money's worth,
such payment or distribution in respect of principal of, or premium, if
any, or interest on the Securities or in connection with any repurchase by
the Company of the Securities shall be paid over to the holders of such
Senior Indebtedness of the Company or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any such Senior Indebtedness of the
Company may have been issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness of the Company remaining unpaid until
all such Senior Indebtedness of the Company shall have been paid in full,
after giving effect to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness of the Company.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Eligible Obligations pursuant to
Section 701 or 702 (provided all conditions set out in such Section shall have
been satisfied), the funds so deposited and any interest thereon will not be
subject to any rights of holders of Senior Indebtedness of the Company
including, without limitation, those arising under this Article Fifteen;
provided that no event described in clauses (e) and (f) of Section 801 with
respect to the Company has occurred during such 123-day period.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other Person
provided for by a plan of reorganization or readjustment which are subordinate
in right of payment to all Senior Indebtedness of the Company which may at the
time be outstanding to the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. The consolidation of
the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property and assets as an entirety, or substantially as an entirety, to
another Person upon the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 1502 if such other Person shall,
<PAGE>
73
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Eleven hereof. Nothing in Section 1501 or in this
Section 1502 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS OF THE
COMPANY.
Any failure by the Company to make any payment on or perform any other
obligation in respect of Senior Indebtedness of the Company, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed, guaranteed or
otherwise created such indebtedness or obligation, shall not be deemed a default
under clause (b) of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation and (ii) either (A)
no final judgment relating to such dispute shall have been issued against the
Company which is in full force and effect and is not subject to further review,
including a judgment that has become final by reason of the expiration of the
time within which a party may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or appeal has been issued, the
Company shall in good faith be prosecuting an appeal or other proceeding for
review and a stay or execution shall have been obtained pending such appeal or
review.
SECTION 1504. SUBROGATION.
Senior Indebtedness of the Company shall not be deemed to have been
paid in full unless the holders thereof shall have received cash (or securities
or other property satisfactory to such holders) in full payment of such Senior
Indebtedness of the Company then outstanding. Upon the payment in full of all
Senior Indebtedness of the Company, the rights of the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness of the
Company to receive any further payments or distributions of cash, property or
securities of the Company applicable to the holders of the Senior Indebtedness
of the Company until all amounts owing on the Securities shall be paid in full;
and such payments or distributions of cash, property or securities received by
the Holders of the Securities, by reason of such subrogation, which otherwise
would be paid or distributed to the holders of such Senior Indebtedness of the
Company shall, as between the Company, its creditors other than the holders of
Senior Indebtedness of the Company, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness of the Company, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders, on the one hand, and
the holders of the Senior Indebtedness of the Company, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness of the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of Senior
Indebtedness of the Company, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness of the Company in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
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74
Upon any payment or distribution of assets, cash or property or
securities of the Company referred to in this Article, the Trustee and the
Holders shall be entitled to rely upon any order or decree of a court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Indebtedness of the Company and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon,
and all other facts pertinent thereto or to this Article.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a representative of such holder or a trustee
under any indenture under which any instruments evidencing any such Senior
Indebtedness of the Company may have been issued) to establish that such notice
has been given by a holder of such Senior Indebtedness of the Company or such
representative or trustee on behalf of such holder. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness, or its
representative or representatives or trustee or trustees under any indenture
under which any instruments evidencing any such Senior Indebtedness of the
Company may have been issued, to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness of the Company held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the right of such Person under this Article, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment or distribution.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS OF THE COMPANY UPON MATURITY.
Upon the maturity of the principal of any Senior Indebtedness of the
Company by lapse of time, acceleration or otherwise, all matured principal of
Senior Indebtedness of the Company and interest, premium and other payment
obligation, if any, thereon shall first be paid in full before any payment of
principal or premium, if any, or interest, if any, is made upon the Securities
or before any Securities can be acquired by the Company or any sinking fund
payment is made with respect to the Securities (except that required sinking
fund payments may be reduced by Securities acquired before such maturity of such
Senior Indebtedness of the Company).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS OF THE COMPANY.
The Trustee shall be entitled to all rights set forth in this Article
with respect to any Senior Indebtedness of the Company at any time held by it,
to the same extent as any other holder of Senior Indebtedness of the Company.
Nothing in this Article shall deprive the Trustee of any of its rights as such
holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of moneys
to or by the Trustee unless and until the Trustee shall have received written
notice thereof from the Company, from a Holder or from a holder of any Senior
Indebtedness of the Company or from any representative or representatives of
such holder or any trustee or trustees under any indenture under which any
instruments evidencing any such Senior Indebtedness of the Company may have been
issued and, prior to the receipt of any such written notice, the Trustee shall
be entitled, subject to Section 901, in all respects to assume that no such
facts exist; provided, however, that, if prior to the fifth Business Day
<PAGE>
75
preceding the date upon which by the terms of this Indenture any such moneys may
become payable for any purpose, or in the event of the execution of an
instrument pursuant to Section 701 or 702 acknowledging that Securities or
portions thereof are deemed to have been paid for all purposes of this
Indenture, acknowledging that the entire indebtedness of the Company and the
Guarantor in respect thereof has been satisfied and discharged or acknowledging
satisfaction and discharge of this Indenture, then if prior to the second
Business Day preceding the date of such execution, the Trustee shall not have
received with respect to such moneys the notice provided for in this Section,
then, anything herein contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary, which may be received by it on or after such date; provided, however,
that no such application shall affect the obligations under this Article of the
persons receiving such moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR INDEBTEDNESS OF THE
COMPANY.
The holders of Senior Indebtedness of the Company or their
representative or representatives or the trustee or trustees under any indenture
under which any instruments evidencing any such Senior Indebtedness of the
Company may have been issued may, without affecting in any manner the
subordination of the payment of the principal of and premium, if any, and
interest, if any, on the Securities, at any time or from time to time and in
their absolute discretion, agree with the Company to change the manner, place or
terms of payment, change or extend the time of payment of, or renew or alter,
any Senior Indebtedness of the Company, or amend or supplement any instrument
pursuant to which any Senior Indebtedness of the Company is issued, or exercise
or refrain from exercising any other of their rights under the Senior
Indebtedness of the Company including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders or the Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR INDEBTEDNESS
OF THE COMPANY.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
the Company shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company, and shall not be liable to any such holders if it
shall mistakenly pay over or deliver to the Holders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article or otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1507, 1508 and 1510 shall not apply to the Company if it acts as
Paying Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS OF THE COMPANY NOT
IMPAIRED.
No right of any present or future holder of Senior Indebtedness of the
Company to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
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76
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the contrary, other than
as provided in the immediately succeeding sentence, all the provisions of this
Indenture shall be subject to the provisions of this Article, so far as the same
may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness of the Company, if, and to the extent, the
Company shall have delivered to the Trustee a notice to such effect. Any such
notice delivered by the Company shall not be deemed to be a supplemental
indenture for purposes of Article Twelve.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1601. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest (including Additional Interest), if any, on any
Securities or any Guarantee, or any part thereof, or for any claim based thereon
or otherwise in respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or future
of the Company or the Guarantor or of any predecessor or successor Person of
either of them (either directly or through the Company or the Guarantor, as the
case may be, or a predecessor or successor Person of either of them), whether by
virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly agreed
and understood that this Indenture and all the Securities and Guarantees are
solely corporate obligations, and that, except as otherwise provided as
contemplated by Section 301, no personal liability whatsoever shall attach to,
or be incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of the Guarantor or of any predecessor or
successor Person of either of them, either directly or indirectly through the
Company or the Guarantor or of any predecessor or successor Person, because of
the indebtedness hereby authorized or under or by reason of any of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities and Guarantees or to be implied herefrom or therefrom, and that
any such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of this
Indenture and the issuance of the Securities and Guarantees.
-------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE>
77
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, in New York, New York, as of the day and year first above
written.
FPL GROUP CAPITAL INC
By:
------------------------------------
Name:
Title:
FPL GROUP, INC.,
as Guarantor
By:
------------------------------------
Name:
Title:
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THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Name:
Title:
</TEXT>
</DOCUMENT>