COLUMBUS SOUTHERN POWER COMPANY AND BANK ONE, N. A., AS TRUSTEE INDENTURE Dated as of February 1, 2003
Exhibit
4(e)
COLUMBUS
SOUTHERN POWER COMPANY
AND
BANK
ONE,
N. A.,
AS
TRUSTEE
____________________
Dated
as
of February 1, 2003
____________________
CROSS-REFERENCE
TABLE
|
Section
of
Trust
Indenture Act
of
1939, as amended
|
Section
of
|
|
|
310(a)
|
7.09
|
|
|
310(b)
|
7.08
|
|
|
7.10
|
||
|
310(c)
|
Inapplicable
|
|
|
311(a)
|
7.13
|
|
|
311(b)
|
7.13
|
|
|
311(c)
|
Inapplicable
|
|
|
312(a)
|
5.01
|
|
|
5.02(a)
|
||
|
312(b)
|
5.02(c)
|
|
|
5.02(d)
|
||
|
312(c)
|
5.02(e)
|
|
|
313(a)
|
5.04(a)
|
|
|
313(b)
|
5.04(b)
|
|
|
313(c)
|
5.04(a)
|
|
|
5.04(b)
|
||
|
313(d)
|
5.04(c)
|
|
|
314(a)
|
5.03
|
|
|
314(b)
|
Inapplicable
|
|
|
314(c)
|
13.06(a)
|
|
|
314(d)
|
Inapplicable
|
|
|
314(e)
|
13.06(b)
|
|
|
314(f)
|
Inapplicable
|
|
|
315(a)
|
7.01(a)
|
|
|
7.02
|
||
|
315(b)
|
6.07
|
|
|
315(c)
|
7.01(a)
|
|
|
315(d)
|
7.01(b)
|
|
|
315(e)
|
6.08
|
|
|
316(a)
|
6.06
|
|
|
8.04
|
||
|
316(b)
|
6.04
|
|
|
316(c)
|
8.01
|
|
|
317(a)
|
6.02
|
|
|
317(b)
|
4.03
|
|
|
318(a)
|
13.08
|
|
TABLE
OF
CONTENTS
This
Table of Contents does not constitute part of the Indenture and should not
have
any bearing upon the interpretation of any of its terms or
provisions
RECITALS:
|
Purpose
of Indenture
|
1
|
||
|
Compliance
with legal requirements
|
1
|
||
|
Purpose
of and consideration for Indenture
|
1
|
||
|
ARTICLE
ONE - DEFINITIONS
|
|||
|
Section
1.01
|
|||
|
Definitions.
|
2
|
||
|
ARTICLE
TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF
SECURITIES
|
|||
|
Section
2.01
|
|||
|
Designation,
terms, amount, authentication and delivery of Securities
|
8
|
||
|
Section
2.02
|
|||
|
Form
of Security and Trustee’s certificate.
|
9
|
||
|
Section
2.03
|
9
|
||
|
Date
and denominations of Securities, and provisions for payment of
principal,
premium and interest
|
9
|
||
|
Section
2.04
|
|||
|
Execution
of Securities
|
11
|
||
|
Section
2.05
|
|||
|
Exchange
of Securities
|
12
|
||
|
Section
2.06
|
|||
|
Temporary
Securities.
|
13
|
||
|
Section
2.07
|
|||
|
Mutilated,
destroyed, lost or stolen Securities
|
14
|
||
|
Section
2.08
|
|||
|
Cancellation
of surrendered Securities
|
14
|
||
|
Section
2.09
|
|||
|
Provisions
of Indenture and Securities for sole benefit of parties and
Securityholders
|
15
|
||
|
Section
2.10
|
|||
|
Appointment
of Authenticating Agent
|
15
|
||
|
Section
2.11
|
|||
|
Global
Security
|
15
|
||
| Section 2.12 | |||
| Payment in Proper Currency |
16
|
||
|
Section
2.13
|
|||
|
Identification
of Securities
|
17
|
||
|
ARTICLE
THREE - REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS
|
|||
|
Section
3.01
|
|||
|
Redemption
of Securities
|
17
|
||
|
Section
3.02
|
|||
|
Notice
of redemption
|
17
|
||
|
Section
3.03
|
|||
|
When
Securities called for redemption become due and payable
|
18
|
||
|
Section
3.04
|
|||
|
Sinking
Fund for Securities
|
19
|
||
|
Section
3.05
|
|||
|
Satisfaction
of Sinking Fund Payments with Securities
|
19
|
||
|
Section
3.06
|
|||
|
Redemption
of Securities for Sinking Fund
|
19
|
||
|
ARTICLE
FOUR - PARTICULAR COVENANTS OF THE COMPANY
|
|||
|
Section
4.01
|
|||
|
Payment
of principal (and premium if any) and interest on
Securities
|
20
|
||
|
Section
4.02
|
|||
|
Maintenance
of office or agency for payment of Securities, designation of
office or
agency for payment, registration, transfer and exchange of
Securities
|
20
|
||
|
Section
4.03
|
|||
|
Duties
of paying agent
|
20
|
||
|
Section
4.04
|
|||
|
Appointment
to fill vacancy in office of Trustee
|
21
|
||
|
Section
4.05
|
|||
|
Restriction
on consolidation, merger or sale
|
21
|
||
|
ARTICLE
FIVE - SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
|
|||
|
Section
5.01
|
|||
|
Company
to furnish Trustee information as to names and addresses of office
of
Trustee Securityholders
|
21
|
||
|
Section
5.02
|
|||
|
Trustee
to preserve information as to names and addresses of Securityholders
received by it in capacity of paying agent.
|
22
|
||
|
Section
5.03
|
|||
|
Annual
and other reports to be filed by Company with Trustee
|
23
|
||
|
Section
5.04
|
|||
|
Trustee
to transmit annual report to Securityholders
|
24
|
||
|
ARTICLE
SIX - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
|
|||
|
Section
6.01
|
|||
|
Events
of default defined
|
25
|
||
|
Section
6.02
|
|||
|
Covenant
of Company to pay to Trustee whole amount due on Securities on
default in
payment of interest or principal (and premium, if any)
|
27
|
||
|
Section
6.03
|
|||
|
Application
of monies collected by Trustee
|
28
|
||
|
Section
6.04
|
|||
|
Limitation
on suits by holders of Securities
|
29
|
||
|
Section
6.05
|
|||
|
Remedies
Cumulative
|
29
|
||
|
Section
6.06
|
|||
|
Rights
of holders of majority in principal amount of Securities to direct
trustee
and to waive defaults
|
30
|
||
|
Section
6.07
|
|||
|
Trustees
to give notice of defaults known to it, but may withhold in certain
circumstances
|
30
|
||
|
Section
6.08
|
|||
|
Requirements
of an undertaking to pay costs in certain suits under Indenture
or against
Trustee
|
31
|
||
|
ARTICLE
SEVEN - CONCERNING THE TRUSTEE
|
|||
|
Section
7.01
|
|||
|
Upon
Event of Default occurring and continuing, Trustee shall exercise
powers
vested in it, and use same degree of care and skill in their
exercise, as
prudent individual will use
|
31
|
||
|
Section
7.02
|
|||
|
Trustee
may rely on documents believed genuine and properly signed or
presented
|
32
|
||
|
Section
7.03
|
|||
|
Trustee
not liable for recitals in Indenture or in Securities
|
34
|
||
|
Section
7.04
|
|||
|
Trustee,
paying agent or Security Registrar may own Security
|
34
|
||
|
Section
7.05
|
|||
|
Monies
received by Trustee to be held in Trust without interest
|
34
|
||
|
Section
7.06
|
|||
|
Trustee
entitled to compensation, reimbursement and indemnity
|
34
|
||
|
Section
7.07
|
|||
|
Right
of Trustee to rely on certificate of officers of Company where
no other
evidence specifically prescribed
|
35
|
||
|
Section
7.08
|
|||
|
Trustee
acquiring conflicting interest to eliminate conflict or
resign
|
35
|
||
|
Section
7.09
|
|||
|
Requirements
for eligibility of trustee
|
35
|
||
|
Section
7.10
|
|||
|
Resignation
of Trustee and appointment of successor
|
35
|
||
|
Section
7.11
|
|||
|
Acceptance
by successor Trustee
|
37
|
||
|
Section
7.12
|
|||
|
Successor
to Trustee by merger, consolidation of succession to
business
|
38
|
||
|
Section
7.13
|
|||
|
Limitations
on rights of Trustee as a creditor to obtain payment of certain
claims
|
38
|
||
|
ARTICLE
EIGHT - CONCERNING THE SECURITYHOLDERS
|
|||
|
Section
8.01
|
|||
|
Evidence
of action by Securityholders
|
38
|
||
|
Section
8.02
|
|||
|
Proof
of execution of instruments and of holding of Securities
|
39
|
||
|
Section
8.03
|
|||
|
Who
may be deemed owners of Securities
|
39
|
||
|
Section
8.04
|
|||
|
Securities
owned by Company or controlled or controlling companies disregarded
for
certain purposes
|
39
|
||
|
Section
8.05
|
|||
|
Instruments
executed by Securityholders bind future holders
|
40
|
||
|
ARTICLE
NINE - SUPPLEMENTAL INDENTURES
|
|||
|
Section
9.01
|
|||
|
Purposes
for which supplemental indenture may be entered into without
consent of
Securityholders
|
40
|
||
|
Section
9.02
|
|||
|
Modification
of Indenture with consent of Securityholders
|
42
|
||
|
Section
9.03
|
|||
|
Effect
of supplemental indentures
|
43
|
||
|
Section
9.04
|
|||
|
Securities
may bear notation of changes by supplemental indentures
|
44
|
||
|
Section
9.05
|
|||
|
Opinion
of Counse
|
44
|
||
|
ARTICLE
TEN - CONSOLIDATION, MERGER AND SALE
|
|||
|
Section
10.01
|
|||
|
Consolidations
or mergers of Company and sales or conveyances of property of
Company
permitted
|
44
|
||
|
Section
10.02
|
|||
|
Rights
and duties of successor company
|
44
|
||
|
Section
10.03
|
|||
|
Opinion
of Counsel
|
45
|
||
|
ARTICLE
ELEVEN - DEFEASANCE AND CONDITIONS TO DEFEASANCE; UNCLAIMED
MONIES
|
|||
|
Section
11.01
|
|||
|
Defeasance
and conditions to defeasance
|
45
|
||
|
Section
11.02
|
|||
|
Application
by Trustee of funds deposited for payment of Securities
|
47
|
||
|
Section
11.03
|
|||
|
Repayment
of monies held by paying agent
|
47
|
||
|
Section
11.04
|
|||
|
Repayment
of monies held by Trustee
|
47
|
||
|
Section
11.05
|
|||
|
Delivery
of Officer’s Certificate and Opinion of Counsel
|
47
|
||
|
ARTICLE
TWELVE - IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
|
|||
|
Section
12.01
|
|||
|
Incorporators,
Stockholders, officers and directors of Company exempt from individual
liability
|
47
|
||
|
ARTICLE
THIRTEEN - MISCELLANEOUS PROVISIONS
|
|||
|
Section
13.01
|
|||
|
Successors
and assigns of Company bound by Indenture
|
48
|
||
|
Section
13.02
|
|||
|
Acts
of board, committee or officer of successor company valid
|
48
|
||
|
Section
13.03
|
|||
|
Surrender
of powers by Company
|
48
|
||
|
Section
13.04
|
|||
|
Required
notices or demands may by served by mail
|
48
|
||
|
Section
13.05
|
|||
|
Indenture
and Securities to be construed in accordance with laws of the
State of New
York
|
48
|
||
|
Section
13.06
|
|||
|
Officers’
Certificate and Opinion of Counsel to be furnished upon applications
or
demands by company
|
49
|
||
|
Section
13.07
|
|||
|
Payments
due on non-Business Days
|
49
|
||
|
Section
13.08
|
|||
|
Provisions
required by Trust Indenture Act of 1939 to control
|
49
|
||
|
Section
13.09
|
|||
|
Indenture
may be executed in counterparts
|
49
|
||
|
Section
13.10
|
|||
|
Separability
of Indenture
|
49
|
||
|
Section
13.11
|
|||
|
Assignment
by Company to subsidiary
|
50
|
||
|
Section
13.12
|
|||
|
Headings
|
50
|
||
|
Section
13.13
|
|||
|
Securities
in Foreign Currencies
|
|||
|
ACCEPTANCE
OF TRUST BY TRUSTEE
|
51
|
||
|
TESTIMONIUM
|
51
|
||
|
SIGNATURES
AND SEALS
|
51
|
||
|
ACKNOWLEDGEMENTS
|
52
|
||
THIS
INDENTURE, dated as of the
day of February,
2003, between COLUMBUS SOUTHERN POWER COMPANY, a corporation duly organized
and
existing under the laws of the State of Ohio (hereinafter sometimes referred
to
as the “Company”), and BANK ONE, N. A., a national banking association organized
under the laws of the United States, as trustee (hereinafter sometimes referred
to as the “Trustee”):
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution
and delivery of this Indenture to provide for the issuance of unsecured
promissory notes or other evidences of indebtedness (hereinafter referred to
as
the “Securities”), in an unlimited aggregate principal amount to be issued from
time to time in one or more series as in this Indenture provided, as registered
Securities without coupons, to be authenticated by the certificate of the
Trustee, and which will rank pari passu with all other unsecured and
unsubordinated debt of the Company;
WHEREAS,
to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture;
WHEREAS,
the Securities and the certificate of authentication to be borne by the
Securities (the “Certificate of Authentication”) are to be substantially in such
forms as may be approved by a Company Order (as defined below), or set forth
in
this Indenture or in any indenture supplemental to this Indenture;
AND
WHEREAS, all acts and things necessary to make the Securities issued pursuant
hereto, when executed by the Company and authenticated and delivered by the
Trustee as in this Indenture provided, the valid, binding and legal obligations
of the Company, and to constitute these presents a valid indenture and agreement
according to its terms, have been done and performed or will be done and
performed prior to the issuance of such Securities, and the execution of this
Indenture has been and the issuance hereunder of the Securities has been or
will
be prior to issuance in all respects duly authorized, and the Company, in the
exercise of the legal right and power in it vested, executes this Indenture
and
proposes to make, execute, issue and deliver the Securities;
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That
in
order to declare the terms and conditions upon which the Securities are and
are
to be authenticated, issued and delivered, and in consideration of the premises,
of the purchase and acceptance of the Securities by the holders thereof and
of
the sum of one dollar ($1.00) to it duly paid by the Trustee at the execution
of
these presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee, for the equal and proportionate benefit
(subject to the provisions of this Indenture) of the respective holders from
time to time of the Securities, without any discrimination, preference or
priority of any one Security over any other by reason of priority in the time
of
issue, sale or negotiation thereof, or otherwise, except as provided herein,
as
follows:
ARTICLE ONE
DEFINITIONS
SECTION
1.01. The
terms
defined in this Section (except as in this Indenture otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture, any Company Order, any Board Resolution, and any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended, or which are by reference in such Act defined
in the Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act
as
in force at the date of the execution of this instrument.
Affiliate:
The
term
“Affiliate” of the Company shall mean any company at least a majority of whose
outstanding voting stock shall at the time be owned by the Company, or by one
or
more direct or indirect subsidiaries of or by the Company and one or more direct
or indirect subsidiaries of the Company. For the purposes only of this
definition of the term “Affiliate”, the term “voting stock”, as applied to the
stock of any company, shall mean stock of any class or classes having ordinary
voting power for the election of a majority of the directors of such company,
other than stock having such power only by reason of the occurrence of a
contingency.
Authenticating
Agent:
The
term
“Authenticating Agent” shall mean an authenticating agent with respect to all or
any of the series of Securities, as the case may be, appointed with respect
to
all or any series of the Securities, as the case may be, by the Trustee pursuant
to Section 2.10.
Authorized
Officer:
The
term
“Authorized Officer” shall mean the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer or any other officer
or
agent of the Company duly authorized by the Board of Directors to act in respect
of matters relating to this Indenture.
Board
of
Directors or Board:
The
term
“Board of Directors” or “Board” shall mean the Board of Directors of the
Company, or any duly authorized committee of such Board.
Board
Resolution:
The
term
“Board Resolution” shall mean a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification.
Business
Day:
The
term
“Business Day”, with respect to any Security, shall mean any day that (a) in the
Place of Payment (or in any of the Places of Payment, if more than one) in
which
amounts are payable as specified in the form of such Security and (b) in the
city in which the Trustee administers its corporate trust business, is not
a day
on which banking institutions are authorized or required by law or regulation
to
close.
Certificate:
The
term
“Certificate” shall mean a certificate signed by an Authorized Officer. The
Certificate need not comply with the provisions of Section 13.06.
Commission:
The
term
“Commission” shall mean the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) or if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body, if any, performing such duties
on
such date.
Company:
The
term
“Company” shall mean Columbus Southern Power Company, a corporation duly
organized and existing under the laws of Ohio, and, subject to the provisions
of
Article Ten, shall also include its successors and assigns.
Company
Order:
The
term
“Company Order” shall mean a written order signed in the name of the Company by
an Authorized Officer and the Secretary or an Assistant Secretary of the
Company, pursuant to a Board Resolution establishing a series of
Securities.
Corporate
Trust Office:
The
term
“Corporate Trust Office” shall mean the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of the execution of this Indenture is located at
.
Default:
The
term
“Default” shall mean any event, act or condition which with notice or lapse of
time, or both, would constitute an Event of Default.
Depository:
The
term
“Depository” shall mean, with respect to Securities of any series, for which the
Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Exchange
Act
or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.
Discount
Security:
The
term
“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 6.01(b).
Dollar:
The
term
“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:
The
term
“Eligible Obligations” means (a) with respect to Securities denominated in
Dollars, Governmental 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 2.01.
Event
of
Default:
The
term
“Event of Default” with respect to Securities of a particular series shall mean
any event specified in Section 6.01, continued for the period of time, if any,
therein designated.
Global
Security:
The
term
“Global Security” shall mean, with respect to any series of Securities, a
Security executed by the Company and authenticated and delivered by the Trustee
to the Depository or pursuant to the Depository’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depository
or
its nominee.
Governmental
Authority:
The
term
“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.
Governmental
Obligations:
The
term
“Governmental Obligations” shall mean securities that are (i) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised
by
and acting as an agency or instrumentality of the United States, the payment
of
which is unconditionally guaranteed as a full faith and credit obligation by
the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such Governmental Obligation or a
specific payment of principal of or interest on any such Governmental Obligation
held by such custodian for the account of the holder of such depository receipt;
provided that (except as required by law) such custodian is not authorized
to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by such custodian in respect of the
Governmental Obligation or the specific payment of principal of or interest
on
the Governmental Obligation evidenced by such depository receipt.
Indenture:
The
term
“Indenture” shall mean this instrument as originally executed, or, if amended or
supplemented as herein provided, as so amended or supplemented, and shall
include the terms of a particular series of Securities established as
contemplated by Section 2.01.
Instructions:
The
term
“Instructions” shall mean instructions acceptable to the Trustee issued pursuant
to a Company Order in connection with a Periodic Offering and signed by an
Authorized Officer. Instructions need not comply with the provisions of Section
13.06.
Interest:
The
term
“interest” when used with respect to non-interest bearing Securities shall mean
interest payable after maturity (whether at stated maturity, upon acceleration
or redemption or otherwise) or after the date, if any, on which the Company
becomes obligated to acquire a Security, whether by purchase or
otherwise.
Interest
Payment Date:
The
term
“Interest Payment Date” when used with respect to any installment of interest on
a Security of a particular series shall mean the date specified in such Security
or in a Board Resolution, Company Order or an indenture supplemental hereto
with
respect to such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.
Officers’
Certificate:
The
term
“Officers’ Certificate” shall mean a certificate signed by an Authorized Officer
and by the Secretary or Assistant Secretary of the Company. Each such
certificate shall include the statements provided for in Section 13.06, if
and
to the extent required by the provisions thereof.
Opinion
of Counsel:
The
term
“Opinion of Counsel” shall mean an opinion in writing signed by legal counsel,
who may be an employee of or counsel for the Company. Each such opinion shall
include the statements provided for in Section 13.06, if and to the extent
required by the provisions thereof.
Outstanding:
The
term
“outstanding”, when used with reference to Securities of any series, shall,
subject to the provisions of Section 8.04, mean, as of any particular time,
all
Securities of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Securities theretofore canceled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or which have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which monies or Eligible Obligations
in
the necessary amount shall have been deposited in trust with the Trustee or
with
any paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of such
Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and
(c)
Securities in lieu of or in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.07. The
principal amount of a Discount Security that shall be deemed to be Outstanding
for purposes of this Indenture 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.
Periodic
Offering:
The
term
“Periodic Offering” means an offering of Securities of a series from time to
time, during which any or all of the specific terms of the Securities, including
without limitation the rate or rates of interest, if any, thereon, the 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:
The
term
“person” means any individual, corporation, partnership, limited liability
company, joint venture, trust or unincorporated organization or any Governmental
Authority.
Place
of
Payment:
The
term
“Place of Payment” shall mean the place or places where the principal of and
interest, if any, on the Securities of any series are payable as specified
in
accordance with Section 2.01.
Predecessor
Security:
The
term
“Predecessor Security” of any particular Security shall mean 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 2.07 in lieu of a lost, destroyed
or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
Responsible
Officer:
The
term
“Responsible Officer” when used with respect to the Trustee shall mean the
chairman of the board of directors, the president, any vice president, the
secretary, the treasurer, any trust officer, any corporate trust officer or
any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
Security
or Securities:
The
term
“Security” or “Securities” shall mean any Security or Securities, as the case
may be, authenticated and delivered under this Indenture.
Securityholder:
The
term
“Securityholder”, “holder of Securities” or “registered holder” shall mean the
person or persons in whose name or names a particular Security shall be
registered on the books of the Company kept for that purpose in accordance
with
the terms of this Indenture.
Series:
The
term
“series” means a series of Securities established pursuant to this Indenture and
includes, if the context so requires, each Tranche thereof.
Tranche:
The
term
“Tranche” means Securities which (a) are of the same series and (b) have
identical terms except as to principal amount and/or date of
issuance.
Trustee:
The
term
“Trustee” shall mean Bank One, N. A., and, subject to the provisions of Article
Seven, shall also include its successors and assigns, and, if at any time there
is more than one person acting in such capacity hereunder, “Trustee” shall mean
each such person. The term “Trustee” as used with respect to a particular series
of the Securities shall mean the trustee with respect to that
series.
Trust
Indenture Act:
The
term
“Trust Indenture Act”, subject to the provisions of Sections 9.01, 9.02, and
10.01, shall mean the Trust Indenture Act of 1939, as amended and in effect
at
the date of execution of this Indenture.
United
States:
The
term
“United States” means the United States of America, its Territories, its
possessions and other areas subject to its political jurisdiction.
ARTICLE
TWO
ISSUE,
DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION
2.01. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The
Securities may be issued from time to time in one or more series and in one
or
more Tranches thereof. Each series shall be authorized by a Company Order or
Orders or one or more indentures supplemental hereto, which shall specify
whether the Securities of such series shall be subject to a Periodic Offering.
The Company Order or Orders or supplemental indenture and, in the case of a
Periodic Offering, Instructions or other procedures acceptable to the Trustee
specified in such Company Order or Orders, shall establish the terms of the
series, which may include the following: (i) any limitations on the aggregate
principal amount of the Securities to be authenticated and delivered under
this
Indenture as part of such series (except for Securities authenticated and
delivered upon registration of transfer of, in exchange for or in lieu of other
Securities of that series); (ii) the stated maturity or maturities of such
series; (iii) the date or dates from which interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Date; (iv) the interest rate or rates (which may be fixed or variable),
or method of calculation of such rate or rates, for such series; (v) the terms,
if any, regarding the redemption, purchase or repayment of such series (whether
at the option of the Company or a holder of the Securities of such series and
whether pursuant to a sinking fund or analogous provisions, including payments
made in cash in anticipation of future sinking fund obligations), including
redemption, purchase or repayment date or dates of such series, if any, and
the
price or prices and other terms and conditions applicable to such redemption,
purchase or repayment (including any premium); (vi) whether or not the
Securities of such series shall be issued in whole or in part in the form of
a
Global Security and, if so, the Depositary for such Global Security and the
related procedures with respect to transfer and exchange of such Global
Security; (vii) the designation of such series; (viii) the form of the
Securities of such series; (ix) the maximum annual interest rate, if any, of
the
Securities permitted for such series; (x) whether the Securities of such series
shall be subject to Periodic Offering; (xi) the currency or currencies,
including composite currencies, in which payment of the principal of (and
premium, if any) and interest on the Securities of such series shall be payable,
if other than Dollars; (xii) any other information necessary to complete the
Securities of such series; (xiii) the establishment of any office or agency
pursuant to Section 4.02 hereof and any other place or places which the
principal of and interest, if any, on Securities of that series shall be
payable; (xiv) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which the Securities of the series shall be
issuable; (xv) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such series
denominated in a currency other than Dollars or in a composite currency; (xvi)
whether or not the Securities of such series shall be issued as Discount
Securities and the terms thereof, including the portion of the principal amount
thereof which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01(b); (xvii) if the principal of and premium,
if
any, or interest, if any, on such Securities are to be payable, at the election
of the Company or the holder thereof, in coin or currency, including composite
currencies, 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 shall be made; (xviii) if the amount of payment of principal
of
and premium, if any, or interest, if any, on such Securities may be determined
with reference to an index, formula or other method, or based on a coin or
currency other than that in which the Securities are stated to be payable,
the
manner in which such amount shall be determined; (xix) whether the provisions
of
Section 4.05 and Article Ten (or portions thereof) shall apply to the Securities
of a series; and (xx)any other terms of such series not inconsistent with this
Indenture.
All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to any
such
Company Order or in any indentures supplemental hereto.
If
any of
the terms of the series are established by action taken pursuant to a Company
Order, a copy of an appropriate record of the applicable Board Resolution shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
setting forth the terms of that series.
SECTION
2.02. The
Securities of any series shall be substantially of the tenor and purport (i)
as
set forth in one or more indentures supplemental hereto or as provided in a
Company Order, or (ii) with respect to any Tranche of Securities of a series
subject to Periodic Offering, to the extent permitted by any of the documents
referred to in clause (i) above, in Instructions, or by other procedures
acceptable to the Trustee specified in such Company Order or Orders, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Securities of that series may be listed or of the Depository,
or to conform to usage.
The
Trustee’s Certificate of Authentication shall be in substantially the following
form:
“This
is
one of the Securities of the series designated in accordance with, and referred
to in, the within-mentioned Indenture.
Dated:
BANK
ONE,
N. A.
By:___________________________
Authorized Signatory”
SECTION
2.03. The
Securities shall be issuable as registered Securities and in the denominations
of $1,000 or any integral multiple thereof, subject to Sections 2.01(xi) and
(xiv). The Securities of a particular series shall bear interest payable on
the
dates and at the rate or rates specified with respect to that series. Except
as
otherwise specified as contemplated by Section 2.01, the principal of and the
interest on the Securities of any series, as well as any premium thereon in
case
of redemption thereof prior to maturity, shall be payable in Dollars at the
office or agency of the Company maintained for that purpose. Each Security
shall
be dated the date of its authentication.
The
interest installment on any Security which is payable, and is punctually paid
or
duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the person in whose name said Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment, except that interest payable on
redemption or maturity shall be payable as set forth in the Company Order or
indenture supplemental hereto establishing the terms of such series of
Securities. Except as otherwise specified as contemplated by Section 2.01,
interest on Securities will be computed on the basis of a 360-day year of twelve
30-day months.
Any
interest on any Security which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date for Securities of the same series
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of having been
such holder; and such Defaulted Interest shall be paid by the Company, at its
election, as provided in clause (1) or clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to the persons
in whose names such Securities (or their respective Predecessor Securities)
are
registered at the close of business on a special record date for the payment
of
such Defaulted Interest, which shall be fixed in the following manner: the
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a
special record date for the payment of such Defaulted Interest which shall
not
be more than 15 nor less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the
proposed payment. The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each Securityholder
at his or her address as it appears in the Security Register (as hereinafter
defined), 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 mailed as aforesaid, such Defaulted Interest shall be paid to the
persons in whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date and shall be no longer
payable pursuant to the following clause (2).
(2) The
Company may make payment of any Defaulted Interest on any Securities 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 to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall
be
deemed practicable by the Trustee.
Unless
otherwise set forth in a Company Order or one or more indentures supplemental
hereto establishing the terms of any series of Securities pursuant to Section
2.01 hereof, the term “regular record date” as used in this Section with respect
to a series of Securities with respect to any Interest Payment Date for such
series shall mean either the fifteenth day of the month immediately preceding
the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the first
day of a month, or the last day of the month immediately preceding the month
in
which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day
of a
month, whether or not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a series delivered
under this Indenture upon transfer of or in exchange for or in lieu of any
other
Security of such series shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
SECTION
2.04. The
Securities shall, subject to the provisions of Section 2.06, be printed on
steel
engraved borders or fully or partially engraved, or legibly typed, as the proper
officer of the Company may determine, and shall be signed on behalf of the
Company by an Authorized Officer. The signature of such Authorized Officer
upon
the Securities may be in the form of a facsimile signature of a present or
any
future Authorized Officer and may be imprinted or otherwise reproduced on the
Securities and for that purpose the Company may use the facsimile signature
of
any person who shall have been an Authorized Officer, notwithstanding the fact
that at the time the Securities shall be authenticated and delivered or disposed
of such person shall have ceased to be an Authorized Officer.
Only
such
Securities as shall bear thereon a Certificate of Authentication substantially
in the form established for such Securities, executed manually by an authorized
signatory of the Trustee, or by any Authenticating Agent with respect to such
Securities, shall be entitled to the benefits of this Indenture or be valid
or
obligatory for any purpose. Such certificate executed by the Trustee, or by
any
Authenticating Agent appointed by the Trustee with respect to such Securities,
upon any Security executed by the Company shall be conclusive evidence that
the
Security so authenticated has been duly authenticated and delivered hereunder
and that the registered holder thereof is entitled to the benefits of this
Indenture.
At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series executed by the Company to
the
Trustee for authentication, together with an indenture supplemental hereto
or a
Company Order for the authentication and delivery of such Securities and the
Trustee, in accordance with such supplemental indenture or Company Order, shall
authenticate and deliver such Securities; provided, however, that in the case
of
Securities offered in a Periodic Offering, the Trustee shall authenticate and
deliver such Securities from time to time in accordance with Instructions or
such other procedures acceptable to the Trustee as may be specified by or
pursuant to such supplemental indenture or Company Order delivered to the
Trustee prior to the time of the first authentication of Securities of such
series.
In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall receive
and (subject to Section 7.01) shall be fully protected in relying upon, (i)
an
Opinion of Counsel and (ii) and Officers’ Certificate, each stating that the
form and terms thereof have been established in conformity with the provisions
of this Indenture; 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 and Officers’ Certificate only once at or prior to the
time of the first authentication of Securities of such series and that, in
such
opinion or certificate, the opinion or certificate described above may state
that when the terms of such Securities, or each Tranche thereof, shall have
been
established pursuant to a Company Order or Orders or pursuant to such procedures
acceptable to the Trustee, as may be specified by a Company Order, such terms
will have been established in conformity with the provisions of this Indenture.
Each Opinion of Counsel and Officers’ Certificate delivered pursuant to this
Section 2.04 shall include all statements prescribed in Section 13.06(b). Such
Opinion of Counsel shall also be to the effect that when such Securities have
been executed by the Company and authenticated by the Trustee in accordance
with
the provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will be valid and legally binding obligations of the
Company, enforceable in accordance with their terms (subject to customary
exceptions) and will be entitled to the benefits of this Indenture.
With
respect to Securities of a series subject to a Periodic Offering, the Trustee
may conclusively rely, as to the authorization by the Company of any of such
Securities, the forms and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Company Order, Opinion of Counsel,
Officers’ Certificate and other documents delivered pursuant to Sections 2.01
and this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such Company Order,
Opinion of Counsel, Officers’ Certificate or other documents have been
superseded or revoked or expire by their terms.
The
Trustee shall not be required to authenticate such Securities if the issue
of
such Securities pursuant to this Indenture will affect the Trustee’s own rights,
duties or immunities under the Securities and this Indenture or otherwise in
a
manner which is not reasonably acceptable to the Trustee.
SECTION
2.05. (a) Securities
of any series may be exchanged upon presentation thereof at the office or agency
of the Company designated for such purpose, for other Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon
payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section. In respect of any Securities
so surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange therefor the
Security or Securities of the same series which the Securityholder making the
exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated
for
such purpose in the Borough of Manhattan, the City and State of New York, or
such other location designated by the Company a register or registers (herein
referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall register the Securities
and
the transfers of Securities as in this Article provided and which at all
reasonable times shall be open for inspection by the Trustee. The registrar
for
the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution or Company Order
(the “Security Registrar”).
Upon
surrender for transfer of any Security at the office or agency of the Company
designated for such purpose in the Borough of Manhattan, the City and State
of
New York, or other location as aforesaid, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as
the
Security presented for a like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of transfer,
as
provided in this Section, shall be accompanied (if so required by the Company
or
the Security Registrar) by a written instrument or instruments of transfer,
in
form satisfactory to the Company or the Security Registrar, duly executed by
the
registered holder or by his duly authorized attorney in writing.
(c) Except
as
provided in the first paragraph of Section 2.07, no service charge shall be
made
for any exchange or registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d)
The
Company shall neither be required (i) to issue, exchange or register the
transfer of any Securities during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of less than
all
the outstanding Securities of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register the transfer of or
exchange of any Securities of any series or portions thereof called for
redemption or as to which the holder thereof has exercised its right, if any,
to
require the Company to repurchase such Security in whole or in part, except
that
portion of such Security not required to be repurchased. The provisions of
this
Section 2.05 are, with respect to any Global Security, subject to Section 2.11
hereof.
SECTION
2.06. Pending
the preparation of definitive Securities of any series, the Company may execute,
and the Trustee shall authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination, and substantially
in the form of the definitive Securities in lieu of which they are issued,
but
with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company. Every temporary
Security of any series shall be executed by the Company and be authenticated
by
the Trustee upon the same conditions and in substantially the same manner,
and
with like effect, as the definitive Securities of such series in accordance
with
Section 2.04. Without unnecessary delay the Company will execute and will
furnish definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor (without
charge to the holders thereof), at the office or agency of the Company
designated for the purpose, and the Trustee shall authenticate and such office
or agency shall deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series, unless
the
Company advises the Trustee to the effect that definitive Securities need not
be
executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the
same
benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
SECTION
2.07. In
case
any temporary or definitive Security shall become mutilated or be destroyed,
lost or stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon its request the Trustee (subject as aforesaid) shall
authenticate and deliver, a new Security of the same series bearing a number
not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed,
lost
or stolen. In every case the applicant for a substituted Security shall furnish
to the Company and to the Trustee such security or indemnity as may be required
by them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of the
applicant’s Security and of the ownership thereof. The Trustee may authenticate
any such substituted Security and deliver the same upon the written request
or
authorization of any officer of the Company. Upon the issuance of any
substituted Security, the Company may require the payment of a sum sufficient
to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Security which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company
may,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Security)
if
the applicant for such payment shall furnish to the Company and to the Trustee
such security or indemnity as they may require to save them harmless, and,
in
case of destruction, loss or theft, evidence to the satisfaction of the Company
and the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
Every
Security issued pursuant to the provisions of this Section in substitution
for
any Security which is mutilated, destroyed, lost or stolen shall constitute
an
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities,
and
shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION
2.08. All
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer, or for credit against a sinking fund, shall, if
surrendered to the Company or any paying agent, be delivered to the Trustee
for
cancellation, or, if surrendered to the Trustee, shall be canceled by it, and
no
Securities shall be issued in lieu thereof except as expressly required or
permitted by any of the provisions of this Indenture. On request of the Company,
the Trustee shall deliver to the Company canceled Securities held by the
Trustee. In the absence of such request the Trustee may dispose of canceled
Securities in accordance with its standard procedures. If the Company shall
otherwise acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by
such
Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION
2.09. Nothing
in this Indenture or in the Securities, express or implied, shall give or be
construed to give to any person, firm or corporation, other than the parties
hereto and the holders of the Securities, any legal or equitable right, remedy
or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders of the
Securities.
SECTION
2.10. So
long
as any of the Securities of any series remain outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee
shall have the right to appoint. Said Authenticating Agent shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued
upon exchange, transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication by an Authenticating
Agent for such series except for authentication upon original issuance or
pursuant to Section 2.07 hereof. Each Authenticating Agent shall be acceptable
to the Company and shall be a corporation which has a combined capital and
surplus, as most recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in which it is doing
business to conduct a trust business, and which is otherwise authorized under
such laws to conduct such business and is subject to supervision or examination
by Federal or State authorities. If at any time any Authenticating Agent shall
cease to be eligible in accordance with these provisions it shall resign
immediately.
Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
(and
upon request by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent
and
to the Company. Upon resignation, termination or cessation of eligibility of
any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto. The Company agrees to pay
to
each Authenticating Agent from time to time reasonable compensation for its
services under this Section.
SECTION
2.11. (a) If
the Company shall establish pursuant to Section 2.01 that the Securities of
a
particular series are to be issued as a Global Security, then the Company shall
execute and the Trustee shall, in accordance with Section 2.04, authenticate
and
deliver, a Global Security which (i) shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be authenticated and delivered by the
Trustee to the Depository or pursuant to the Depository’s instruction and (iv)
shall bear a legend substantially to the following effect: “Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be transferred,
in
whole but not in part, only to another nominee of the Depository or to a
successor Depository or to a nominee of such successor Depository.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section
2.05, only to another nominee of the Depository for such series, or to a
successor Depository for such series selected or approved by the Company or
to a
nominee of such successor Depository.
(c) If
at any
time the Depository for a series of Securities notifies the Company that it
is
unwilling or unable to continue as Depository for such series or if at any
time
the Depository for such series shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute or regulation and a
successor Depository for such series is not appointed by the Company within
90
days after the Company receives such notice or becomes aware of such condition,
as the case may be, this Section 2.11 shall no longer be applicable to the
Securities of such series and the Company will execute, and subject to Section
2.05, the Trustee will authenticate and deliver Securities of such series in
definitive registered form without coupons, in authorized denominations, and
in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition,
the
Company may at any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Securities of such series. In such
event the Company will execute, and subject to Section 2.05, the Trustee, upon
receipt of an Officers’ Certificate evidencing such determination by the
Company, will authenticate and deliver Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the
Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled
by
the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered
in
such names and in such authorized denominations as the Depository, pursuant
to
instructions from its direct or indirect participants or otherwise, shall
instruct the Security Registrar. The Trustee shall deliver such Securities
to
the Depository for delivery to the persons in whose names such Securities are
so
registered.
SECTION
2.12. In
the
case of the Securities of any series 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
2.01, the obligation of the Company to make any payment of the principal
thereof, or the premium or interest thereon, shall not be discharged or
satisfied by any tender by the Company, 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,
the
Company 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
2.13. The
Company in issuing Securities may use “CUSIP” numbers (if then generally in use)
and, if so used, the Trustee shall use “CUSIP” numbers in notices of redemption
as a convenience to holders of Securities; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or contained in any notice of redemption
and
that reliance may be placed only on the other identification numbers printed
on
the Securities, and any such redemption shall not be affected by any defect
in
or omission of such numbers. The Company shall promptly notify the Trustee
of
any change in the CUSIP numbers.
ARTICLE
THREE
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
SECTION
3.01. The
Company may redeem the Securities of any series issued hereunder on and after
the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
SECTION
3.02. (a) In
case the Company shall desire to exercise such right to redeem all or, as the
case may be, a portion of the Securities of any series in accordance with the
right reserved so to do, it shall give notice of such redemption to holders
of
the Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than
60
days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register. Any notice
which is mailed in the manner herein provided shall be conclusively presumed
to
have been duly given, whether or not the registered holder receives the notice.
In any case, failure duly to give such notice to the holder of any Security
of
any series designated for redemption in whole or in part, or any defect in
the
notice, shall not affect the validity of the proceedings for the redemption
of
any other Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption or subject to compliance with certain conditions provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with any
such restriction or condition.
Unless
otherwise so provided as to a particular series of Securities, if at the time
of
mailing of any notice of redemption the Company shall not have deposited with
the paying agent an amount in cash sufficient to redeem all of the Securities
called for redemption, including accrued interest to the date fixed for
redemption, such notice shall state that it is subject to the receipt of
redemption moneys by the paying agent on or before the date fixed for redemption
(unless such redemption is mandatory) and such notice shall be of no effect
unless such moneys are so received on or before such date.
Each
such
notice of redemption shall identify the Securities to be redeemed (including
CUSIP numbers, if any), specify the date fixed for redemption and the redemption
price at which Securities of that series are to be redeemed, and shall state
that payment of the redemption price of such Securities to be redeemed will
be
made at the office or agency of the Company, upon presentation and surrender
of
such Securities, that interest accrued to the date fixed for redemption will
be
paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed, the notice
to the holders of Securities of that series to be redeemed in whole or in part
shall specify the particular Securities to be so redeemed. In case any Security
is to be redeemed in part only, the notice which relates to such Security shall
state the portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such Security,
a
new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
(b) If
less
than all the Securities of a series are to be redeemed, the Company shall give
the Trustee at least 45 days’ notice in advance of the date fixed for redemption
(unless the Trustee shall agree to a shorter period) as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon
the
Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and which may provide for the selection
of a portion or portions (equal to $1,000 or any integral multiple thereof,
subject to Sections 2.01(xi) and (xiv)) of the principal amount of such
Securities of a denomination larger than $1,000 (subject as aforesaid), the
Securities to be redeemed and shall thereafter promptly notify the Company
in
writing of the numbers of the Securities to be redeemed, in whole or in
part.
The
Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by an Authorized Officer, instruct the Trustee or any
paying agent to call all or any part of the Securities of a particular series
for redemption and to give notice of redemption in the manner set forth in
this
Section, such notice to be in the name of the Company or its own name as the
Trustee or such paying agent may deem advisable. In any case in which notice
of
redemption is to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit to remain with, the Trustee
or such paying agent, as the case may be, such Security Register, transfer
books
or other records, or suitable copies or extracts therefrom, sufficient to enable
the Trustee or such paying agent to give any notice by mail that may be required
under the provisions of this Section.
SECTION
3.03. (a) If
the giving of notice of redemption shall have been completed as above provided,
the Securities or portions of Securities of the series to be redeemed specified
in such notice shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with, subject to
the
Company Order or supplemental indenture hereto establishing the terms of such
series of Securities, interest accrued to the date fixed for redemption and
interest on such Securities or portions of Securities shall cease to accrue
on
and after the date fixed for redemption, unless the Company shall default in
the
payment of such redemption price and accrued interest with respect to any such
Security or portion thereof. On presentation and surrender of such Securities
on
or after the date fixed for redemption at the place of payment specified in
the
notice, said Securities shall be paid and redeemed at the applicable redemption
price for such series, together with, subject to the Company Order or
supplemental indenture hereto establishing the terms of such series of
Securities, interest accrued thereon to the date fixed for
redemption.
(b) Upon
presentation of any Security of such series which is to be redeemed in part
only, the Company shall execute and the Trustee shall authenticate and the
office or agency where the Security is presented shall deliver to the holder
thereof, at the expense of the Company, a new Security or Securities of the
same
series, of authorized denominations in principal amount equal to the unredeemed
portion of the Security so presented.
SECTION
3.04. The
provisions of this Section 3.04 and Sections 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such
series.
The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “mandatory sinking fund
payment”, and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an “optional sinking
fund payment”. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption
of
Securities of such series as provided for by the terms of Securities of such
series.
SECTION
3.05. The
Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (ii) may apply as a credit Securities
of a
series which have been 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, in each case
in
satisfaction of all or any part of any mandatory sinking fund payment; provided
that such Securities have not been previously so credited. Such Securities
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 mandatory
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION
3.06. Not
less
than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is
to
be satisfied by delivering and crediting Securities of that series pursuant
to
Section 3.05 and the basis for such credit and will, together with such
Officers’ Certificate, deliver to the Trustee any Securities to be so delivered.
Not less than 30 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 3.02 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 3.02, except that the notice of redemption shall
also
state that the Securities of such series are being redeemed by operation of
the
sinking fund and the sinking fund payment date. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the
manner stated in Section 3.03.
ARTICLE
FOUR
PARTICULAR
COVENANTS OF THE COMPANY
The
Company covenants and agrees for each series of the Securities as
follows:
SECTION
4.01. The
Company will duly and punctually pay or cause to be paid the principal of (and
premium, if any) and interest on the Securities of that series at the time
and
place and in the manner provided herein and established with respect to such
Securities.
SECTION
4.02. So
long
as any series of the Securities remain outstanding, the Company agrees to
maintain an office or agency with respect to each such series, which shall
be in
the Borough of Manhattan, the City and State of New York or at such other
location or locations as may be designated as provided in this Section 4.02,
where (i) Securities of that series may be presented for payment, (ii)
Securities of that series may be presented as hereinabove authorized for
registration of transfer and exchange, and (iii) notices and demands to or
upon
the Company in respect of the Securities of that series and this Indenture
may
be given or served, such designation to continue with respect to such office
or
agency until the Company shall, by written notice signed by an Authorized
Officer and delivered to the Trustee, designate some other office or agency
for
such purposes or any of them. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the
address thereof, such presentations, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and demands.
The Trustee will initially act as paying agent for the Securities.
The
Company may also from time to time, by written notice signed by an Authorized
Officer and delivered to the Trustee, designate one or more other offices or
agencies for the foregoing purposes within or outside the Borough of Manhattan,
City of New York, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the
Company of its obligations to maintain an office or agency in the Borough of
Manhattan, City of New York for the foregoing purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
other office or agency.
SECTION
4.03. (a) If
the Company shall appoint one or more paying agents for all or any series of
the
Securities, other than the Trustee, the Company will cause each such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this
Section:
(1) that
it
will hold all sums held by it as such agent for the payment of the principal
of
(and premium, if any) or interest on the Securities of that series (whether
such
sums have been paid to it by the Company or by any other obligor of such
Securities) in trust for the benefit of the persons entitled
thereto;
(2) that
it
will give the Trustee notice of any failure by the Company (or by any other
obligor of such Securities) to make any payment of the principal of (and
premium, if any) or interest on the Securities of that series when the same
shall be due and payable;
(3) that
it
will, at any time during the continuance of any failure referred to in the
preceding paragraph (a)(2) above, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such paying agent;
and
(4) that
it
will perform all other duties of paying agent as set forth in this
Indenture.
(b) If
the
Company shall act as its own paying agent with respect to any series of the
Securities, it will on or before each due date of the principal of (and premium,
if any) or interest on Securities of that series, set aside, segregate and
hold
in trust for the benefit of the persons entitled thereto a sum sufficient to
pay
such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such Securities) to take
such action. Whenever the Company shall have one or more paying agents for
any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with
the
paying agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
persons entitled to such principal, premium or interest, and (unless such paying
agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
(c) Anything
in this Section to the contrary notwithstanding, (i) the agreement to hold
sums
in trust as provided in this Section is subject to the provisions of Section
11.04, and (ii) the Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or
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
terms and conditions as those upon which such sums were held by the Company
or
such paying agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with respect
to
such money.
SECTION
4.04. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION
4.05. Unless
a
Company Order or supplemental indenture establishing the series of Securities
provides otherwise, the Company will not, while any of the Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell
or
convey all or substantially all of its property to any other Person unless
the
provisions of Article Ten hereof are complied with.
ARTICLE
FIVE
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY
AND
THE
TRUSTEE
SECTION
5.01. The
Company will furnish or cause to be furnished to the Trustee (a) on each regular
record date (as defined in Section 2.03) for the Securities of each Tranche
of a
series a list, in such form as the Trustee may reasonably require, of the names
and addresses of the holders of such Tranche of Securities as of such regular
record date, provided, that the Company shall not be obligated to furnish or
cause to be furnished such list at any time that the list shall not differ
in
any respect from the most recent list furnished to the Trustee by the Company
and (b) at such other times as the Trustee may request in writing within 30
days
after the receipt by the Company of any such request, a list of similar form
and
content as of a date not more than 15 days prior to the time such list is
furnished; provided, however, no such list need be furnished for any series
for
which the Trustee shall be the Security Registrar.
SECTION
5.02. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable,
all
information as to the names and addresses of the holders of Securities contained
in the most recent list furnished to it as provided in Section 5.01 and as
to
the names and addresses of holders of Securities received by the Trustee in
its
capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon
receipt of a new list so furnished.
(c) In
case
three or more holders of Securities of a series (hereinafter referred to as
“applicants”) apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period
of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of
Securities of such series or holders of all Securities with respect to their
rights under this Indenture or under such Securities, and is accompanied by
a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either:
(1) afford
to
such applicants access to the information preserved at the time by the Trustee
in accordance with the provisions of subsection (a) of this Section 5.02;
or
(2) inform
such applicants as to the approximate number of holders of Securities of such
series or of all Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section 5.02, and as to the
approximate cost of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
(d) If
the
Trustee shall elect not to afford such applicants access to such information,
the Trustee shall, upon the written request of such applicants, mail to each
holder of such series or of all Securities, as the case may be, whose name
and
address appears in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 5.02, a copy
of
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to
be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the Trustee shall mail
to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of
the Trustee, such mailing would be contrary to the best interests of the holders
of Securities of such series or of all Securities, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an
order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of
such material to all such Securityholders with reasonable promptness after
the
entry of such order and the renewal of such tender; otherwise, the Trustee
shall
be relieved of any obligation or duty to such applicants respecting their
application.
(e) Each
and
every holder of the Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
paying agent nor any Security Registrar shall be held accountable by reason
of
the disclosure of any such information as to the names and addresses of the
holders of Securities in accordance with the provisions of subsection (c) of
this Section, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (c).
SECTION
5.03. (a) The
Company covenants and agrees to file with the Trustee, within 30 days after
the
Company is required to file the same with the Commission, a copy of the annual
reports and of the information, documents and other reports (or a copy of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
or,
if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and, unless
the Commission shall not accept such information, documents or reports, the
Commission, in accordance with the rules and regulations prescribed from time
to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The
Company covenants and agrees to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect
to
compliance by the Company with the conditions and covenants provided for in
this
Indenture as may be required from time to time by such rules and
regulations.
(c) The
Company covenants and agrees to transmit by mail, first class postage prepaid,
or reputable over-night delivery service which provides for evidence of receipt,
to the Securityholders, as their names and addresses appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by
the
Company pursuant to subsections (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
(d) The
Company covenants and agrees to furnish to the Trustee, on or before May 15
in
each calendar year in which any of the Securities are outstanding, or on or
before such other day in each calendar year as the Company and the Trustee
may
from time to time agree upon, a Certificate as to compliance with all conditions
and covenants under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
(e) Delivery
of such information, documents or reports to the Trustee pursuant to Section
5.03(a) or 5.03(b) is for informational purposes only and the Trustee’s receipt
thereof shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including, in the
case of Section 5.03(b), the Company’s compliance with any of the covenants
hereunder.
SECTION
5.04. (a) On
or before July 15 in each year in which any of the Securities are outstanding,
the Trustee shall transmit by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security Register,
a brief report dated as of the preceding May 15, with respect to any of the
following events which may have occurred within the previous twelve months
(but
if no such event has occurred within such period no report need be
transmitted):
(1) any
change to its eligibility under Section 7.09, and its qualifications under
Section 310(b) of the Trust Indenture Act;
(2) the
creation of or any material change to a relationship specified in paragraphs
(1)
through (10) of Section 310 of the Trust Indenture Act;
(3) the
character and amount of any advances (and if the Trustee elects so to state,
the
circumstances surrounding the making thereof) made by the Trustee (as such)
which remain unpaid on the date of such report, and for the reimbursement of
which it claims or may claim a lien or charge, prior to that of the Securities,
on any property or funds held or collected by it as trustee if such advances
so
remaining unpaid aggregate more than 1/2 of 1% of the principal amount of the
Securities outstanding on the date of such report;
(4) any
change to the amount, interest rate, and maturity date of all other indebtedness
owing by the Company, or by any other obligor on the Securities, to the Trustee
in its individual capacity, on the date of such report, with a brief description
of any property held as collateral security therefor, except any indebtedness
based upon a creditor relationship arising in any manner described in paragraphs
(2), (3), (4) or (6) of Section 311(b) of the Trust Indenture Act;
(5) any
change to the property and funds, if any, physically in the possession of the
Trustee as such on the date of such report;
(6) any
release, or release and substitution, of property subject to the lien, if any,
of this Indenture (and the consideration thereof, if any) which it has not
previously reported;
(7) any
additional issue of Securities which the Trustee has not previously reported;
and
(8) any
action taken by the Trustee in the performance of its duties under this
Indenture which it has not previously reported and which in its opinion
materially affects the Securities or the Securities of any series, except any
action in respect of a default, notice of which has been or is to be withheld
by
it in accordance with the provisions of Section 6.07.
(b) The
Trustee shall transmit by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security Register,
a brief report with respect to the character and amount of any advances (and
if
the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee as such since the date of the last report
transmitted pursuant to the provisions of subsection (a) of this Section (or
if
no such report has yet been so transmitted, since the date of execution of
this
Indenture), for the reimbursement of which it claims or may claim a lien or
charge prior to that of the Securities of any series on property or funds held
or collected by it as Trustee, and which it has not previously reported pursuant
to this subsection if such advances remaining unpaid at any time aggregate
more
than 10% of the principal amount of Securities of such series outstanding at
such time, such report to be transmitted within 90 days after such
time.
(c) A
copy of
each such report shall, at the time of such transmission to Securityholders,
be
filed by the Trustee with the Company, with each stock exchange upon which
any
Securities are listed (if so listed) and also with the Commission. The Company
agrees to notify the Trustee when any Securities become listed on any stock
exchange.
ARTICLE
SIX
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS
ON
EVENT
OF DEFAULT
SECTION
6.01. (a)
Whenever
used herein with respect to Securities of a particular series, “Event of
Default” means any one or more of the following events which has occurred and is
continuing:
(1) default
in the payment of any installment of interest upon any of the Securities of
that
series, as and when the same shall become due and payable, and continuance
of
such default for a period of 30 days;
(2) default
in the payment of the principal of (or premium, if any, on) any of the
Securities of that series as and when the same shall become due and payable
whether at maturity, upon redemption, pursuant to any sinking fund obligation,
by declaration or otherwise, and continuance of such default for a period of
3
Business Days;
(3) failure
on the part of the Company duly to observe or perform any other of the covenants
or agreements on the part of the Company with respect to that series contained
in such Securities or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof or contained in this Indenture (other
than a covenant or agreement which has been expressly included in this Indenture
solely for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such notice is
a
“Notice of Default” hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the Trustee
by
the holders of at least 33% in principal amount of the Securities of that series
at the time outstanding;
(4) a
decree
or order by a court having jurisdiction in the premises shall have been entered
adjudging the Company as bankrupt or insolvent, or approving as properly filed
a
petition seeking liquidation or reorganization of the Company under the Federal
Bankruptcy Code or any other similar applicable Federal or State law, and such
decree or order shall have continued unvacated and unstayed for a period of
90
consecutive days; or an involuntary case shall be commenced under such Code
in
respect of the Company and shall continue undismissed for a period of 90
consecutive days or an order for relief in such case shall have been entered;
or
a decree or order of a court having jurisdiction in the premises shall have
been
entered for the appointment on the ground of insolvency or bankruptcy of a
receiver or custodian or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the winding up or
liquidation of its affairs, and such decree or order shall have remained in
force unvacated and unstayed for a period of 90 consecutive days;
(5) the
Company shall institute proceedings to be adjudicated a voluntary bankrupt,
or
shall consent to the filing of a bankruptcy proceeding against it, or shall
file
a petition or answer or consent seeking liquidation or reorganization under
the
Federal Bankruptcy Code or any other similar applicable Federal or State law,
or
shall consent to the filing of any such petition, or shall consent to the
appointment on the ground of insolvency or bankruptcy of a receiver or custodian
or liquidator or trustee or assignee in bankruptcy or insolvency of it or of
its
property, or shall make an assignment for the benefit of creditors;
or
(6) the
occurrence of any other Event of Default with respect to Securities of such
series, as contemplated by Section 2.01 hereof.
(b) The
Company shall file with the Trustee written notice of the occurrence of any
Event of Default within five Business Days of the Company’s becoming aware of
any such Event of Default. In each and every such case, unless the principal
of
all the Securities of that series shall have already become due and payable,
either the Trustee or the holders of not less than 33% in aggregate principal
amount of the Securities of that series then outstanding hereunder, by notice
in
writing to the Company (and to the Trustee if given by such Securityholders),
may declare the principal (or, if any of such Securities are Discount
Securities, such portion of the principal amount thereof as may be specified
by
their terms as contemplated by Section 2.01) of all the Securities of that
series to be due and payable immediately, and upon any such declaration the
same
shall become and shall be immediately due and payable, anything contained in
this Indenture or in the Securities of that series or established with respect
to that series pursuant to Section 2.01 hereof to the contrary
notwithstanding.
(c) Section
6.01(b), however, is subject to the condition that if, at any time after the
principal of the Securities of that series shall have been so declared due
and
payable, and before any judgment or decree for the payment of the monies due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of that series and the
principal of (and premium, if any, on) any and all Securities of that series
which shall have become due otherwise than by acceleration (with interest upon
such principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at
the
rate per annum expressed in the Securities of that series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and any and all defaults under the Indenture, other than the nonpayment of
principal on Securities of that series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06, then
and
in every such case the holders of a majority in aggregate principal amount
of
the Securities of that series then outstanding, by written notice to the Company
and to the Trustee, may rescind and annul such declaration and its consequences
with respect to that series of Securities; but no such rescission and annulment
shall extend to or shall affect any subsequent default, or shall impair any
right consequent thereon.
(d) In
case
the Trustee has been directed by Securityholders and has proceeded to enforce
any right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
SECTION
6.02. (a) The
Company covenants that in case an Event of Default described in subsection
6.01(a)(1) or (a)(2) shall have occurred and be continuing, upon demand of
the
Trustee, the Company will pay to the Trustee, for the benefit of the holders
of
the Securities of that series, the whole amount that then shall have become
due
and payable on all such Securities for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law and without duplication of any other amounts
paid by the Company in respect thereof) upon overdue installments of interest
at
the rate per annum expressed in the Securities of that series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the Trustee under Section
7.06.
(b) In
case
the Company shall fail forthwith to pay such amounts upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for
the
collection of the sums so due and unpaid, and may prosecute any such action
or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or other obligor upon the Securities of that
series and collect in the manner provided by law out of the property of the
Company or other obligor upon the Securities of that series wherever situated
the monies adjudged or decreed to be payable.
(c) In
case
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or other judicial proceedings affecting
the Company, any other obligor on such Securities, or the creditors or property
of either, the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and shall (except
as
may be otherwise provided by law) be entitled to file such proofs of claim
and
other papers and documents as may be necessary or advisable in order to have
the
claims of the Trustee and of the holders of Securities of such series allowed
for the entire amount due and payable by the Company or such other obligor
under
this Indenture at the date of institution of such proceedings and for any
additional amount which may become due and payable by the Company or such other
obligor after such date, and to collect and receive any monies or other property
payable or deliverable on any such claim, and to distribute the same after
the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent to
the
making of such payments directly to such Securityholders, to pay to the Trustee
any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any
of
the terms established with respect to Securities of that series, may be enforced
by the Trustee without the possession of any of such Securities, or the
production thereof at any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under Section 7.06,
be
for the ratable benefit of the holders of the Securities of such series.
In
case
of an Event of Default hereunder, the Trustee may in its discretion proceed
to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or
agreement contained in the Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of that series or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION
6.03. Any
monies collected by the Trustee pursuant to Section 6.02 with respect to a
particular series of Securities shall be applied in the order following, at
the
date or dates fixed by the Trustee and, in case of the distribution of such
monies on account of principal (or premium, if any) or interest, upon
presentation of the several Securities of that series, and stamping thereon
the
payment, if only partially paid, and upon surrender thereof if fully
paid:
FIRST:
To
the
payment of costs and expenses of collection and of all amounts payable to the
Trustee under Section 7.06;
SECOND:
To
the
payment of the amounts then due and unpaid upon Securities of such series for
principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively;
and
THIRD:
To
the
Company.
SECTION
6.04. No
holder
of any Security of any series shall have any right by virtue or by availing
of
any provision of this Indenture to institute any suit, action or proceeding
in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof with respect to Securities
of
such series specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 33% in aggregate principal amount
of
the Securities of such series then outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 60 days after its receipt
of
such notice, request and offer of indemnity, shall have failed to institute
any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by the taker and holder of every Security of such series
with every other such taker and holder and the Trustee, that no one or more
holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in
the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of
the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in
equity.
Notwithstanding
any other provisions of this Indenture, however, the right of any holder of
any
Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the respective
due
dates expressed in such Security (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired
or
affected without the consent of such holder.
SECTION
6.05. (a) All
powers and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative
and
not exclusive of any others thereof or of any other powers and remedies
available to the Trustee or the holders of the Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to such Securities.
(b) No
delay
or omission of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to
be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by this Article or
by
law to the Trustee or to the Securityholders may be exercised from time to
time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION
6.06. The
holders of a majority in aggregate principal amount of the Securities of any
series at the time outstanding, determined in accordance with Section 8.04,
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 such series; provided, however,
that such direction shall not be in conflict with any rule of law or with this
Indenture or unduly prejudicial to the rights of holders of Securities of any
other series at the time outstanding determined in accordance with Section
8.04
not parties thereto. Subject to the provisions of Section 7.01, the Trustee
shall have the right to decline to follow any such direction if the Trustee
in
good faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed might involve the Trustee in personal liability.
The holders of a majority in aggregate principal amount of the Securities of
any
series at the time outstanding affected thereby, determined in accordance with
Section 8.04, may on behalf of the holders of all of the Securities of such
series waive any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.01 with respect to such
series and its consequences, except a default in the payment of the principal
of, or premium, if any, or interest on, any of the Securities of that series
as
and when the same shall become due by the terms of such Securities otherwise
than by acceleration (unless such default has been cured and a sum sufficient
to
pay all matured installments of interest and principal otherwise than by
acceleration and any premium has been deposited with the Trustee (in accordance
with Section 6.01(c))) or a call for redemption of Securities of that series.
Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders
of the Securities of such series shall be restored to their former positions
and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION
6.07. The
Trustee shall, within 90 days after the occurrence of a default with respect
to
a particular series, transmit by mail, first class postage prepaid, to the
holders of Securities of that series, as their names and addresses appear upon
the Security Register, notice of all defaults with respect to that series known
to the Trustee, unless such defaults shall have been cured or waived before
the
giving of such notice (the term “defaults” for the purposes of this Section
being hereby defined to be the events specified in subsections (1), (2), (3),
(4), (5), (6) and (7) of Section 6.01(a), not including any periods of grace
provided for therein and irrespective of the giving of notice provided for
by
subsection (4) of Section 6.01(a)); provided, that, except in the case of
default in the payment of the principal of (or premium, if any) or interest
on
any of the Securities of that series or in the payment of any sinking or
analogous fund installment established with respect to that series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of Securities
of
that series; provided further, that in the case of any default of the character
specified in Section 6.01(a)(4) with respect to Securities of such series no
such notice to the holders of the Securities of that series shall be given
until
at least 30 days after the occurrence thereof.
The
Trustee shall not be deemed to have knowledge of any default, except (i) a
default under subsection (a)(1), (a)(2) or (a)(3) of Section 6.01 as long as
the
Trustee is acting as paying agent for such series of Securities or (ii) any
default as to which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Indenture shall
have
obtained written notice.
SECTION
6.08. All
parties to this Indenture agree, and each holder of any Securities by his or
her
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of
an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to
this
Indenture.
ARTICLE
SEVEN
CONCERNING
THE TRUSTEE
SECTION
7.01. (a) The
Trustee, prior to the occurrence of an Event of Default with respect to
Securities of a series and after the curing of all Events of Default with
respect to Securities of that series which may have occurred, shall undertake
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. In case
an
Event of Default with respect to Securities of a series has occurred (which
has
not been cured or waived), the Trustee shall exercise with respect to Securities
of that 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 man would
exercise or use under the circumstances in the conduct of his own
affairs.
(b) No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its
own willful misconduct, except that:
(1) prior
to
the occurrence of an Event of Default with respect to Securities of a series
and
after the curing or waiving of all such Events of Default with respect to that
series which may have occurred:
(i) the
duties and obligations of the Trustee shall with respect to Securities of such
series be determined solely by the express provisions of this Indenture, and
the
Trustee shall not be liable with respect to Securities of such series except
for
the performance of such duties and obligations 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 the part of the Trustee, 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 any certificates
or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee,
the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein);
(2) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it shall
be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the holders of
not
less than a majority in principal amount of the Securities of any series at
the
time outstanding 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 that series; and
(4) none
of
the provisions contained in this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur or risk personal financial liability
in
the performance of any of its duties or in the exercise of any of its rights
or
powers, if the Trustee reasonably believes that the repayment of such funds
or
liability is not reasonably assured to it under the terms of this Indenture
or
adequate indemnity against such risk is not reasonably assured to
it.
(c) 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, or any other capacity the Trustee may serve hereunder, shall be subject
to the provisions of this Section 7.01.
SECTION
7.02. Except
as
otherwise provided in Section 7.01:
(a) The
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, demand, approval,
bond, security or other paper or document believed by it (i) to be genuine
and
(ii) to have been signed or presented by the proper party or
parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an Officers’ Certificate (unless
other evidence in respect thereof is specifically prescribed
herein);
(c) The
Trustee may consult with counsel and the written advice of such counsel or
any
Opinion of Counsel shall be full and complete authorization and protection
in
respect of any action taken or suffered or omitted hereunder in good faith
and
in reliance thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of
the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing herein contained shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (which has not been cured or waived)
to
exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and to use the same degree of care and skill
in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by
it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, direction, order, demand, approval, bond, security,
or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the outstanding Securities
of
the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition precedent to so proceeding. The reasonable expense
of
every such examination shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand. Notwithstanding the foregoing,
the
Trustee, in its direction, may make such further inquiry or investigation into
such facts or matters as it may see fit. In making any investigation required
or
authorized by this subparagraph, the Trustee shall be entitled to examine 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) The
permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty.
SECTION
7.03. (a) The
recitals contained herein and in the Securities (other than the Certificate
of
Authentication on the Securities) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same.
(b) The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company
of
any of the Securities or of the proceeds of such Securities, or for the use
or
application of any monies paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section 2.01, or for
the
use or application of any monies received by any paying agent other than the
Trustee.
SECTION
7.04. The
Trustee or any paying agent or Security Registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security
Registrar.
SECTION
7.05. Subject
to the provisions of Section 11.04, all monies received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes
for
which they were received, but need not be segregated from other funds except
to
the extent required by law. The Trustee shall be under no liability for interest
on any monies received by it hereunder except such as it may agree in writing
with the Company to pay thereon.
SECTION
7.06. (a) The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee
of an
express trust) for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this
Indenture (including the reasonable compensation and the reasonable expenses
and
disbursements of its counsel and agents and of all persons not regularly in
its
employ) except any such expense, disbursement or advance as may arise from
its
negligence, willful misconduct or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any loss, liability or expense incurred without
negligence, willful misconduct or bad faith on the part of the Trustee and
arising out of or in connection with the acceptance or administration of this
trust, including the reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any
of
its powers or duties hereunder.
(b) The
obligations of the Company under this Section to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon
all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Securities.
(c) Without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an
Event
of Default, the expenses (including reasonable charges and expenses of its
counsel) and compensation for its services are intended to constitute expenses
of administration under applicable federal or state bankruptcy, insolvency
or
similar law.
(d) The
provisions of this Section 7.06 shall survive the satisfaction and discharge
of
this Indenture or the appointment of a successor trustee.
SECTION
7.07. Except
as
otherwise provided in Section 7.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting
to take any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of bad faith
on
the part of the Trustee, be deemed to be conclusively proved and established
by
an Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
SECTION
7.08. If
the
Trustee has acquired or shall acquire a conflicting interest within the meaning
of the Trust Indenture Act, the Trustee shall either eliminate such interest
or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION
7.09. There
shall at all times be a Trustee with respect to the Securities issued hereunder
which shall at all times be a corporation organized and doing business under
the
laws of the United States of America or any State or Territory thereof or of
the
District of Columbia, or a corporation or other person permitted to act as
trustee by the Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
dollars, and subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes
of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any person
directly or indirectly controlling, controlled by, or under common control
with
the Company, serve as Trustee. In case at any time the Trustee shall cease
to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section
7.10.
SECTION
7.10. (a)
The
Trustee or any successor hereafter appointed, may at any time resign with
respect to the Securities of one or more series by giving written notice thereof
to the Company and by transmitting notice of resignation by mail, first class
postage prepaid, to the Securityholders of such series, as their names and
addresses appear upon the Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee with respect
to Securities of such series by written instrument, in duplicate, executed
by
order of the Board of Directors, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the mailing 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 Securities of such series, or any Securityholder of
that
series who has been a bona fide holder of a Security or Securities for at least
six months may, subject to the provisions of Section 6.08, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any,
as
it may deem proper and prescribe, appoint a successor trustee.
(b) In
case
at any time any of the following shall occur:
(1) the
Trustee shall fail to comply with the provisions of Section 7.08 after written
request therefor by the Company or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months; or
(2) The
Trustee shall cease to be eligible in accordance with the provisions of Section
7.09 and shall fail to resign after written request therefor by the Company
or
by any such Securityholder; or
(3) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then,
in
any such case, the Company may remove the Trustee with respect to all Securities
and appoint a successor trustee by written instrument, in duplicate, executed
by
order of the Board of Directors, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or, subject
to
the provisions of Section 6.08, unless, with respect to subsection (b)(1) above,
the Trustee’s duty to resign is stayed as provided in Section 310(b) of the
Trust Indenture Act, any Securityholder who has been a bona fide holder of
a
Security or Securities for at least six months may, on behalf of himself and
all
others similarly situated, petition any court of competent jurisdiction for
the
removal of the Trustee and the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any
series at the time outstanding may at any time remove the Trustee with respect
to such series and appoint a successor trustee.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee
with respect to the Securities of a series pursuant to any of the provisions
of
this Section shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with
respect to the Securities of one or more series or all of such series, and
at
any time there shall be only one Trustee with respect to the Securities of
any
particular series.
SECTION
7.11. (a) In
case of the appointment hereunder of a successor trustee with respect to all
Securities, every such successor trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor trustee all
the
rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held
by
such retiring Trustee hereunder, subject to any prior lien provided for in
Section 7.06(b).
(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 retiring
Trustee and each successor trustee with respect to the Securities of one or
more
series shall execute and deliver an indenture supplemental hereto wherein each
successor trustee shall accept such appointment and which (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) 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, 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 that no Trustee shall be responsible for any act or failure
to
act on the part of any other Trustee hereunder; 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, such
retiring Trustee shall with respect to the Securities of that or those series
to
which the appointment of such successor trustee relates have no further
responsibility for the exercise of rights and powers or for the performance
of
the duties and obligations vested in the Trustee under this Indenture, and
each
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates; but, on request of the Company
or
any successor trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor trustee relates.
(c) Upon
request of any such successor trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No
successor trustee shall accept its appointment unless at the time of such
acceptance such successor trustee shall be qualified under the Trust Indenture
Act and eligible under this Article.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section,
the Company shall transmit notice of the succession of such trustee hereunder
by
mail, first class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at
the
expense of the Company.
SECTION
7.12. Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be qualified under the provisions of the Trust Indenture
Act
and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. 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
7.13. If
and
when the Trustee shall become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding collection of claims against the Company (or
any
other obligor upon the Securities).
ARTICLE
EIGHT
CONCERNING
THE SECURITYHOLDERS
SECTION
8.01. Whenever
in this Indenture it is provided that the holders of a majority or specified
percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request,
the
giving of any notice, consent or waiver or the taking of any other action),
the
fact that at the time of taking any such action the holders of such majority
or
specified percentage of that series have joined therein may be evidenced by
any
instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in person or by agent or proxy appointed
in
writing.
If
the
Company shall solicit from the Securityholders of any series any request,
demand, authorization, direction, notice, consent, waiver or other action,
the
Company may, at its option, as evidenced by an Officers’ Certificate, fix in
advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but the Company shall have no obligation to
do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after
the record date, but only the Securityholders of record at the close of business
on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of outstanding
Securities of that series have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the outstanding Securities of that series shall
be
computed as of the record date; provided that no such authorization, agreement
or consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
In
determining whether the holders of the requisite aggregate principal amount
of
Securities of a particular series have concurred in any direction, consent
or
waiver under this Indenture, 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 6.01.
SECTION
8.02. Subject
to the provisions of Section 7.01, proof of the execution of any instrument
by a
Securityholder (such proof will not require notarization) or his agent or proxy
and proof of the holding by any person of any of the Securities shall be
sufficient if made in the following manner:
(a) The
fact
and date of the execution by any such person of any instrument may be proved
in
any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such
Securities or by a certificate of the Security Registrar thereof.
(c) The
Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.
SECTION
8.03. Prior
to
the due presentment for registration of transfer of any Security, the Company,
the Trustee, any paying agent and any Security Registrar may deem and treat
the
person in whose name such Security shall be registered upon the books of the
Company as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of and premium, if any, and (subject
to Section 2.03) interest on such Security and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
SECTION
8.04. In
determining whether the holders of the requisite aggregate principal amount
of
Securities of a particular series have concurred in any direction, consent
or
waiver under this Indenture, Securities of that series which are owned by the
Company or any other obligor on the Securities of that series or by any person
directly or indirectly controlling or controlled by or under common control
with
the Company or any other obligor on the Securities of that series shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Securities of such series which the Trustee actually knows are so owned shall
be
so disregarded. Securities so owned which have been pledged in good faith may
be
regarded as outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with
respect to such Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as
to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
SECTION
8.05. At
any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the holders of the majority or
percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action, any holder
of
a Security of that series which is shown by the evidence to be included in
the
Securities the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Security. Except as
aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether
or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount
of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee
and
the holders of all the Securities of that series.
ARTICLE
NINE
SUPPLEMENTAL
INDENTURES
SECTION
9.01. In
addition to any supplemental indenture otherwise authorized by this Indenture,
the Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as
then
in effect), without the consent of the Securityholders, for one or more of
the
following purposes:
(a) to
evidence the succession of another person to the Company, and the assumption
by
any such successor of the covenants of the Company contained herein or otherwise
established with respect to the Securities; or
(b) to
add to
the covenants of the Company such further covenants, restrictions, conditions
or
provisions for the protection of the holders of the Securities of all or any
series, and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions, conditions or
provisions a default or an Event of Default with respect to such series
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such default or may limit
the
remedies available to the Trustee upon such default or may limit the right
of
the holders of a majority in aggregate principal amount of the Securities of
such series to waive such default; or
(c) to
cure
any ambiguity or to correct or supplement any provision contained herein or
in
any supplemental indenture which may be defective or inconsistent with any
other
provision contained herein or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising under this Indenture
as shall not be inconsistent with the provisions of this Indenture and shall
not
adversely affect the interests of the holders of the Securities of any series;
or
(d) to
change
or eliminate any of the provisions of this Indenture or to add any new provision
to this Indenture; provided, however, that such change, elimination or addition
shall become effective only when there is no Security outstanding of any series
created prior to the execution of such supplemental indenture that is entitled
to the benefit of such provisions; or
(e) to
establish the form or terms of Securities of any series as permitted by Section
2.01; or
(f) to
add
any additional Events of Default with respect to all or any series of
outstanding Securities; or
(g) to
provide collateral security for the Securities; or
(h) 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 other matters incidental thereto; or
(i) to
evidence and provide for the acceptance of appointment hereunder by a separate
or successor Trustee with respect to the Securities of one or more series and
to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by
more
than one Trustee, pursuant to the requirements of Article Seven; 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 shall be payable, (2)
all
or any series of Securities may be surrendered for registration of transfer,
(3)
all or any series of Securities may be surrendered for exchange and (4) notices
and demands to or upon the Company in respect of all or any series of Securities
and this Indenture may be served; provided, however, that any such place shall
be located in New York, New York or be the principal office of the Company;
or
(k) to
provide for the payment by the Company of additional amounts in respect of
certain taxes imposed on certain holders and for the treatment of such
additional amounts as interest and for all matters incidental thereto;
or
(l) to
provide for the issuance of Securities denominated in a currency other than
Dollars or in a composite currency and for all matters incidental
thereto.
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 and the Trustee
may, without the consent of any Securityholders, enter into a supplemental
indenture 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 and the Trustee may, without the consent
of any Securityholders, enter into a supplemental indenture hereto to effect
such changes or elimination; or
(z)
if,
by
reason of any such amendment, one or more provisions 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 shall be deemed to be incorporated
herein by reference or otherwise, or otherwise made applicable hereto, and
shall
no longer be required to be contained herein, the Company and the Trustee may,
without the consent of any Securityholders, enter into a supplemental indenture
hereto to effect the elimination of such provisions.
The
Trustee is hereby authorized to join with the Company in the execution of any
such supplemental indenture, and to make any further appropriate agreements
and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be
executed by the Company and the Trustee without the consent of the holders
of
any of the Securities at the time outstanding, notwithstanding any of the
provisions of Section 9.02.
SECTION
9.02. With
the
consent (evidenced as provided in Section 8.01) of the holders of not less
than
a majority in aggregate principal amount of the Securities of each series
affected by such supplemental indenture or indentures at the time outstanding,
the Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as
then
in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Securities of such series under this Indenture; provided, however, that no
such
supplemental indenture shall (i) extend the fixed maturity of any Securities
of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, 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 6.01, without the consent of the holders of each
Security then outstanding and affected, (ii) reduce the aforesaid percentage
of
Securities, the holders of which are required to consent to any such
supplemental indenture, or reduce the percentage of Securities, the holders
of
which are required to waive any default and its consequences, without the
consent of the holder of each Security then outstanding and affected thereby,
or
(iii) modify any provision of Section 6.01(c) (except to increase the percentage
of principal amount of securities required to rescind and annul any declaration
of amounts due and payable under the Securities) without the consent of the
holders of each Security then outstanding and affected thereby.
Upon
the
request of the Company, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders required to consent
thereto as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture unless such supplemental indenture affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
A
supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or that modifies the
rights of holders of Securities of such series with respect to such covenant
or
other provision, shall be deemed not to affect the rights under this Indenture
of the holders of Securities of any other series.
It
shall
not be necessary for the consent of the Securityholders of any series affected
thereby under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by mail,
first class postage prepaid, a notice, setting forth in general terms the
substance of such supplemental indenture, to the Securityholders of all series
affected thereby as their names and addresses appear upon the Security Register.
Any failure of the Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION
9.03. Upon
the
execution of any supplemental indenture pursuant to the provisions of this
Article or of Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities
of the series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be
and
be deemed to be part of the terms and conditions of this Indenture for any
and
all purposes.
SECTION
9.04. Securities
of any series, affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions
of
this Article, Article Two or Article Seven or of Section 10.01, may bear a
notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of that series so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
that series then outstanding.
SECTION
9.05. The
Trustee, subject to the provisions of Section 7.01, shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
as
conclusive evidence that any supplemental indenture executed pursuant to this
Article is authorized or permitted by, and conforms to, the terms of this
Article and that it is proper for the Trustee under the provisions of this
Article to join in the execution thereof.
ARTICLE
TEN
CONSOLIDATION,
MERGER AND SALE
SECTION
10.01. Unless
a
Company Order or supplemental indenture establishing a series of Securities
provides otherwise, nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or
into
any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of all or substantially all of the
property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation, merger, sale, conveyance, transfer
or other disposition, the due and punctual payment of the principal of (premium,
if any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
with respect to each series or established with respect to such series pursuant
to Section 2.01 to be kept or performed by the Company, shall be expressly
assumed, by supplemental indenture (which shall conform to the provisions of
the
Trust Indenture Act as then in effect) satisfactory in form to the Trustee
executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
SECTION
10.02. Unless
a
Company Order or supplemental indenture establishing a series of Securities
provides otherwise:
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other
disposition and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of
and
premium, if any, and interest on all of the Securities of all series outstanding
and the due and punctual performance of all of the covenants and conditions
of
this Indenture or established with respect to each series of the Securities
pursuant to Section 2.01 to be kept or performed by the Company with respect
to
each series, such successor corporation shall succeed to and be substituted
for
the Company, with the same effect as if it had been named herein as the party
of
the first part, and thereupon (provided, that in the case of a lease, the term
of the lease is at least as long as the longest maturity of any Securities
outstanding at such time) the predecessor corporation shall be relieved of
all
obligations and covenants under this Indenture and the Securities. Such
successor corporation thereupon may cause to be signed, and may issue either
in
its own name or in the name of the Company or any other predecessor obligor
on
the Securities, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor company, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
predecessor Company to the Trustee for authentication, and any Securities which
such successor corporation thereafter shall cause to be signed and delivered
to
the Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
(b) In
case
of any such consolidation, merger, sale, conveyance, transfer or other
disposition such changes in phraseology and form (but not in substance) may
be
made in the Securities thereafter to be issued as may be
appropriate.
(c) Nothing
contained in this Indenture or in any of the Securities shall prevent the
Company from merging into itself or acquiring by purchase or otherwise all
or
any part of the property of any other corporation (whether or not affiliated
with the Company).
SECTION
10.03. The
Trustee, subject to the provisions of Section 7.01, may receive an Opinion
of
Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply
with
the provisions of this Article.
ARTICLE
ELEVEN
DEFEASANCE
AND CONDITIONS TO DEFEASANCE; UNCLAIMED MONIES
SECTION
11.01. Securities
of a series may be defeased in accordance with their terms and, unless the
Company Order or supplemental indenture establishing the series otherwise
provides, in accordance with this Article.
The
Company at any time may terminate as to a series all of its obligations for
such
series under this Indenture (“legal defeasance option”). The Company at any time
may terminate as to a series its obligations, if any, under any restrictive
covenant which may be applicable to a particular series (“covenant defeasance
option”). However, in the case of the legal defeasance option, the Company’s
obligations in Sections 2.05, 2.07, 4.02, 7.06, 7.10 and 11.04 shall survive
until the Securities of the series are no longer outstanding; thereafter the
Company’s obligations in Sections 7.06, 7.10 and 11.04 shall
survive.
The
Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option. If the Company exercises its legal
defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series
may
not be accelerated by reference to any restrictive covenant which may be
applicable to a particular series so defeased under the terms of the
series.
The
Trustee, upon request of and at the cost and expense of the Company, shall,
subject to compliance with Section 13.06, acknowledge in writing the discharge
of those obligations that the Company terminates.
The
Company may exercise as to a series its legal defeasance option or its covenant
defeasance option if:
(1) The
Company irrevocably deposits in trust with the Trustee or another trustee (x)
money in an amount which shall be sufficient; or (y) Eligible Obligations the
principal of and the interest on which when due, without regard to reinvestment
thereof, will provide moneys, which, together with the money, if any, deposited
or held by the Trustee or such other trustee, shall be sufficient; or (z) a
combination of money and Eligible Obligations which shall be sufficient, to
pay
the principal of and premium, if any, and interest, if any, due and to become
due on such Securities on or prior to maturity;
(2) the
Company delivers to the Trustee a Certificate to the effect that the
requirements set forth in clause (1) above have been satisfied;
(3) immediately
after the deposit no Default exists; and
(4) the
Company delivers to the Trustee an Opinion of Counsel to the effect that holders
of the series will not recognize income, gain or loss for Federal income tax
purposes as a result of the defeasance but will realize income, gain or loss
on
the Securities, including payments of interest thereon, in the same amounts
and
in the same manner and at the same time as would have been the case if such
defeasance had not occurred and which, in the case of legal defeasance, shall
be
(x) accompanied by a ruling of the Internal Revenue Service issued to the
Company or (y) based on a change in law or regulation occurring after the date
hereof; and
(5) the
deposit specified in paragraph (1) above shall not result in the Company, the
Trustee or the trust created in connection with such defeasance being deemed
an
“investment company” under the Investment Company Act of 1940, as
amended.
In
the
event the Company exercises its option to effect a covenant defeasance with
respect to the Securities of any series as described above and the Securities
of
that series are thereafter declared due and payable because of the occurrence
of
any Event of Default other than the Event of Default caused by failing to comply
with the covenants which are defeased, the amount of money and securities on
deposit with the Trustee may not be sufficient to pay amounts due on the
Securities of that series at the time of the acceleration resulting from such
Event of Default. However, the Company shall remain liable for such
payments.
SECTION
11.02. All
monies or Eligible Obligations deposited with the Trustee pursuant to Section
11.01 shall be held in trust and shall be available for payment as due, either
directly or through any paying agent (including the Company acting as its own
paying agent), to the holders of the particular series of Securities for the
payment or redemption of which such monies or Eligible Obligations have been
deposited with the Trustee.
SECTION
11.03. In
connection with the satisfaction and discharge of this Indenture all monies
or
Eligible Obligations then held by any paying agent under the provisions of
this
Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such monies or Eligible Obligations.
SECTION
11.04. Any
monies or Eligible Obligations deposited with any paying agent or the Trustee,
or then held by the Company, in trust for payment of principal of or premium
or
interest on the Securities of a particular series that are not applied but
remain unclaimed by the holders of such Securities for at least two years after
the date upon which the principal of (and premium, if any) or interest on such
Securities shall have respectively become due and payable, upon the written
request of the Company and unless otherwise required by mandatory provisions
of
applicable escheat or abandoned or unclaimed property law, shall be repaid
to
the Company on May 31 of each year or (if then held by the Company) shall be
discharged from such trust; and thereupon the paying agent and the Trustee
shall
be released from all further liability with respect to such monies or Eligible
Obligations, and the holder of any of the Securities entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Company for the payment thereof.
SECTION
11.05. In
connection with any satisfaction and discharge of this Indenture pursuant to
this Article Eleven, the Company shall deliver to the Trustee an Officers’
Certificate and an Opinion of Counsel to the effect that all conditions
precedent in this Indenture provided for relating to such satisfaction and
discharge have been complied with.
ARTICLE
TWELVE
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND
DIRECTORS
SECTION
12.01. No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company
or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because
of
the creation of the indebtedness hereby authorized, or under or by reason of
the
obligations, covenants or agreements contained in this Indenture or in any
of
the Securities or implied therefrom, are hereby expressly waived and released
as
a condition of, and as a consideration for, the execution of this Indenture
and
the issuance of such Securities.
ARTICLE
THIRTEEN
MISCELLANEOUS
PROVISIONS
SECTION
13.01. All
the
covenants, stipulations, promises and agreements in this Indenture contained
by
or on behalf of the Company shall bind its successors and assigns, whether
so
expressed or not.
SECTION
13.02. Any
act
or proceeding by any provision of this Indenture authorized or required to
be
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the corresponding board,
committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.
SECTION
13.03. The
Company by instrument in writing executed by authority of two-thirds of its
Board of Directors and delivered to the Trustee may surrender any of the powers
reserved to the Company under this Indenture and thereupon such power so
surrendered shall terminate both as to the Company and as to any successor
corporation.
SECTION
13.04. Except
as
otherwise expressly provided herein any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the holders of Securities to or on the Company may be given or served
by
being deposited first class postage prepaid in a post office letter box
addressed (until another address is filed in writing by the Company with the
Trustee), as follows: Ohio Power Company, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx
00000, Attention: Treasurer. Any notice, election, request or demand by the
Company or any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee.
SECTION
13.05. This
Indenture and each Security shall be deemed to be a contract made under the
laws
of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
SECTION
13.06. (a)
Upon any
application or demand by the Company to the Trustee to take any action under
any
of the provisions of this Indenture, the Company shall furnish to the Trustee
an
Officers’ Certificate stating that all conditions precedent 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 have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need
be
furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant in this
Indenture (other than the certificate provided pursuant to Section 5.03(d)
of
this Indenture) shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition
has
been complied with; and (4) a statement as to whether or not, in the opinion
of
such person, such condition or covenant has been complied with.
SECTION
13.07. Except
as
provided pursuant to Section 2.01 pursuant to a Company Order, or established
in
one or more indentures supplemental to this Indenture, in any case where the
date of maturity of principal or an Interest Payment Date of any Security or
the
date of redemption, purchase or repayment of any Security shall not be a
Business Day then payment of interest or principal (and premium, if any) may
be
made on the next succeeding Business Day with the same force and effect as
if
made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.
SECTION
13.08. If
and to
the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by the Trust Indenture Act, such imposed duties shall
control.
SECTION
13.09. This
Indenture may be executed in any number of counterparts, each of which shall
be
an original; but such counterparts shall together constitute but one and the
same instrument.
SECTION
13.10. In
case
any one or more of the provisions contained in this Indenture or in the
Securities of any series shall for any reason be held to be invalid, illegal
or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid
or
illegal or unenforceable provision had never been contained herein or
therein.
SECTION
13.11. The
Company will have the right at all times to assign any of its rights or
obligations under the Indenture to a direct or indirect wholly owned subsidiary
of the Company; provided that, in the event of any such assignment, the Company
will remain liable for all such obligations. Subject to the foregoing, this
Indenture is binding upon and inures to the benefit of the parties thereto
and
their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties thereto.
SECTION
13.12. 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
13.13. Whenever
this Indenture provides for any action by, or the determination of any rights
of, holders of Securities of any series in which not all of such Securities
are
denominated in the same currency, in the absence of any provision to the
contrary in the form of Security of any particular series, any amount in respect
of any Security denominated in a currency other than Dollars shall be treated
for any such action or determination of rights as that amount of Dollars that
could be obtained for such amount on such reasonable basis of exchange and
as of
the record date with respect to Securities of such series (if any) for such
action or determination of rights (or, if there shall be no applicable record
date, such other date reasonably proximate to the date of such action or
determination of rights) as the Company may specify in a written notice to
the
Trustee or, in the absence of such written notice, as the Trustee may
determine.
Bank
One,
N.A., as Trustee, hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
COLUMBUS
SOUTHERN POWER COMPANY
By_/s/
G. S. Chatas_____
Assistant
Treasurer
Attest:
By_/s/
X. X. Xxxxxxxxxx
Assistant Secretary
BANK
ONE,
N. A.,
as
Trustee
By_/s/
Xxxxxxx X. Xxxxxx__
Vice
President
Attest:
By_/s/
Xxxxx X. Xxxx__
Trust Officer
