INDENTURE
ILLINOVA CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO, AS TRUSTEE
Dated as of February 1, 1997
__________
ILLINOVA CORPORATION
Reconciliation and Tie between Trust Indenture Act of 1939
and Indenture, dated as of
February 1, 1997
Trust Indenture
Act Section Indenture Section
---------------- -----------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . 5.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 5.8
(a)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . 5.9; 5.12
311(a) . . . . . . . . . . . . . . . . . . . . . 5.13
(b) . . . . . . . . . . . . . . . . . . . . . 5.13
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . 3.8(a)
(b) . . . . . . . . . . . . . . . . . . . . . 3.8(b)
(c) . . . . . . . . . . . . . . . . . . . . . 3.8(c)
313(a) . . . . . . . . . . . . . . . . . . . . . 3.10
(b) . . . . . . . . . . . . . . . . . . . . . 3.10
(c) . . . . . . . . . . . . . . . . . . . . . 3.10
(d) . . . . . . . . . . . . . . . . . . . . . 3.10
314(a) . . . . . . . . . . . . . . . . . . . . . 3.9; 3.11
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 10.5
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 10.5
(c)(3) . . . . . . . . . . . . . . . . . . . . . . 10.5; 9.1
(d) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . 10.5
315(a) . . . . . . . . . . . . . . . . . . . . . 5.1
(b) . . . . . . . . . . . . . . . . . . . . . 4.11; 3.10
(c) . . . . . . . . . . . . . . . . . . . . . 5.1
(d) . . . . . . . . . . . . . . . . . . . . . 5.1
(d)(1) . . . . . . . . . . . . . . . . . . . . . . 5.1(a)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . 5.1(b)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . 5.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . 4.12
316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 4.1; 4.9
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 4.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . 4.6; 4.7
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
317(a)(1) . . . . . . . . . . . . . . . . . . . . . 4.2
(a)(2) . . . . . . . . . . . . . . . . . . . . . 4.2
(b) . . . . . . . . . . . . . . . . . . . . . 5.5
318(a) . . . . . . . . . . . . . . . . . . . . . 10.7
_____________
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture and shall not
have any bearing on the interpretation of its terms or
provisions.
TABLE OF CONTENTS
__________
Page
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined 1
"Assets" 1
"Authenticating Agent" 1
"Authorized Newspaper" 1
"Bearer Security" 2
"Board of Directors" 2
"Board Resolution" 2
"Business Day" 2
"Commission" 2
"Consolidated Capitalization" 2
"Consolidated Indebtedness" 2
"Consolidated Shareholders' Equity" 2
"Consolidated Subsidiary" 2
"Corporate Trust Office" 2
"Coupon" 2
"Covenant Defeasance" 2
"Depositary" 2
"Dollar" 3
"ECU" 3
"Event of Default" 3
"Foreign Currency" 3
"Holder" 3
"Holder of Securities" 3
"Securityholder" 3
"Illinois Power" 3
"Indebtedness" 3
"Indenture" 3
"Interest" 3
"Issuer" 3
"Issuer Order" 3
"Judgment Currency" 3
"Non-Recourse Indebtedness" 3
"Officers' Certificate" 4
"Opinion of Counsel" 4
"Original Issue Date" 4
"Original Issue Discount Security" 4
"Outstanding" 4
"Periodic Offering" 5
"Person" 5
"Principal" 5
"Record Date" 5
"Registered Global Security" 5
"Registered Security" 5
"Required Currency" 5
"Responsible Officer" 5
"Security" 5
"Securities" 5
"Stated Maturity" 5
"Subsidiary" 5
"Trust Indenture Act of 1939" 6
"Trustee" 6
"Unregistered Security" 6
"United States Government Obligations" 6
"Yield to Maturity" 6
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally 6
SECTION 2.2 Form of Trustee's Certificate of Authentication 6
SECTION 2.3 Amount Unlimited; Issuable in Series 7
SECTION 2.4 Authentication and Delivery of Securities 9
SECTION 2.5 Execution of Securities 11
SECTION 2.6 Certificate of Authentication 11
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest 12
SECTION 2.8 Registration, Transfer and Exchange 12
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities 15
SECTION 2.10 Cancellation of Securities; Disposition Thereof 16
SECTION 2.11 Temporary Securities 16
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest 17
SECTION 3.2 Offices for Payments, etc. 17
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee 18
SECTION 3.4 Paying Agents 18
SECTION 3.5 Written Statement to Trustee 19
SECTION 3.6 Limitations upon Liens 19
SECTION 3.7 Luxembourg Publications 21
SECTION 3.8 Securityholders Lists 21
SECTION 3.9 Reports by the Issuer 22
SECTION 3.10 Reports by the Trustee 22
SECTION 3.11 Waiver of Certain Covenants 22
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default 23
SECTION 4.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt 25
SECTION 4.3 Application of Proceeds 27
SECTION 4.4 Suits for Enforcement 28
SECTION 4.5 Restoration of Rights on Abandonment of
Proceedings 28
SECTION 4.6 Limitations on Suits by Securityholders 28
SECTION 4.7 Unconditional Right of Securityholders to
Institute Certain Suits 29
SECTION 4.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default 29
SECTION 4.9 Control by Holders of Securities 29
SECTION 4.10 Waiver of Past Defaults 29
SECTION 4.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances 30
SECTION 4.12 Right of Court to Require Filing of
Undertaking to Pay Costs 30
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default 31
SECTION 5.2 Certain Rights of the Trustee 32
SECTION 5.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of
Proceeds Thereof 33
SECTION 5.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. 33
SECTION 5.5 Moneys Held by Trustee 33
SECTION 5.6 Compensation and Indemnification of Trustee
and Its Prior Claim 33
SECTION 5.7 Right of Trustee to Rely on Officers'
Certificate, etc. 33
SECTION 5.8 Persons Eligible for Appointment as Trustee 34
SECTION 5.9 Resignation and Removal; Appointment of
Successor Trustee 34
SECTION 5.10 Acceptance of Appointment by Successor Trustee 35
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business of Trustee 36
SECTION 5.12 Disqualification; Conflicting Interests 36
SECTION 5.13 Preferential Collection of Claims Against
the Issuer 37
SECTION 5.14 Appointment of Authenticating Agent 37
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders 38
SECTION 6.2 Proof of Execution of Instruments and of
Holding of Securities 38
SECTION 6.3 Holders to be Treated as Owners 39
SECTION 6.4 Securities Owned by Issuer Deemed Not
Outstanding 39
SECTION 6.5 Right of Revocation of Action Taken 39
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent
of Securityholders 40
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders 41
SECTION 7.3 Effect of Supplemental Indenture 42
SECTION 7.4 Documents to Be Given to Trustee 42
SECTION 7.5 Notation on Securities in Respect of
Supplemental Indentures 42
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer May Consolidate, etc. 43
SECTION 8.2 Successor Corporation Substituted 43
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture 44
SECTION 9.2 Application by Trustee of Funds Deposited for
Payment of Securities 47
SECTION 9.3 Repayment of Moneys Held by Paying Agent 47
SECTION 9.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years 48
SECTION 9.5 Indemnity for United States Government
Obligations 48
SECTION 9.6 Excess Funds 48
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual
Liability 48
SECTION 10.2 Provisions of Indenture for the Sole Benefit
of Parties and Holders of Securities and Coupons49
SECTION 10.3 Successors and Assigns of Issuer Bound by
Indenture 49
SECTION 10.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons 49
SECTION 10.5 Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein 49
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays 50
SECTION 10.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939 50
SECTION 10.8 New York Law to Govern 51
SECTION 10.9 Counterparts 51
SECTION 10.10 Effect of Headings 51
SECTION 10.12 Judgment Currency 51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article 52
SECTION 11.2 Notice of Redemption; Partial Redemptions 52
SECTION 11.3 Payment of Securities Called for Redemption 53
SECTION 11.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption 54
SECTION 11.5 Mandatory and Optional Sinking Funds 54
ARTICLE TWELVE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 12.1 Purposes for Which Meetings May Be Called 56
SECTION 12.2 Call, Notice and Place of Meetings 56
SECTION 12.3 Persons Entitled to Vote at Meetings 57
SECTION 12.4 Quorum; Action 57
SECTION 12.5 Determination of Voting; Conduct and
Adjournment of Meetings 58
SECTION 12.6 Counting Votes and Recording Action of
Meetings 58
THIS INDENTURE, dated as of February 1, 1997 between
ILLINOVA CORPORATION, an Illinois corporation (the "Issuer"), and
THE FIRST NATIONAL BANK OF CHICAGO, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from
time to time of its unsecured debentures, notes or other
evidences of indebtedness to be issued in one or more series (the
"Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution
and delivery of this Indenture to provide, among other things,
for the authentication, delivery and administration of the
Securities; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been
done.
NOW, THEREFORE, in consideration of the premises and
the purchases of the Securities by the holders thereof, the
Issuer and the Trustee mutually covenant and agree for the equal
and proportionate benefit of the respective holders from time to
time of the Securities and of the Coupons, if any, appertaining
thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following
terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Article. All other terms
used in this Indenture that are defined in the Trust Indenture
Act of 1939 or the definitions of which in the Securities Act of
1933 are referred to in the Trust Indenture Act of 1939,
including terms defined therein by reference to the Securities
Act of 1933 (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 this Indenture. All
accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are
generally accepted at the time of any computation. The words
"herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms
defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"Assets" shall have the meaning set forth in Section
3.6(b)(4).
"Authenticating Agent" shall have the meaning set forth
in Section 5.14.
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), in the case of the United
Kingdom, will, if practicable, be the Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be
the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day
for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or in
Luxembourg, as applicable. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or
other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
"Bearer Security" means any Security established
pursuant to Section 2.1 which is payable to bearer, including,
without limitation, unless the context otherwise indicates, a
Security in temporary or permanent global bearer form.
"Board of Directors" means either the Board of
Directors of the Issuer or any committee of such Board or other
individuals duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more
resolutions, certified by the secretary or an assistant secretary
of the Issuer to have been duly adopted or consented to by the
Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, a
day that in the city (or in any of the cities, if more than one)
in which amounts are payable, as specified in the form of such
Security, is not a day on which banking institutions are
authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the
execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such
date.
"Consolidated Capitalization" shall have the meaning
set forth in Section 3.6(b)(1).
"Consolidated Indebtedness" shall have the meaning set
forth in Section 3.6(b)(5).
"Consolidated Shareholders' Equity" shall have the
meaning set forth in Section 3.6(b)(2).
"Consolidated Subsidiary" shall have the meaning set
forth in Section 3.6(b)(3).
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which
office is, at the date as of which this Indenture is dated,
located in the City of New York, New York.
"Coupon" means any interest coupon appertaining to a
Security.
"Covenant Defeasance" shall have the meaning set forth
in Section 9.1(C).
"Depositary" means, with respect to the Securities of
any series issuable or issued in the form of one or more
Registered Global Securities, the Person designated as Depositary
by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder,
and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Registered
Global Securities of that series.
"Dollar" means the coin or currency of the United
States of America as at the time of payment is legal tender for
the payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" means any event or condition
specified as such in Section 4.1.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Holder", "Holder of Securities", "Securityholder" or
other similar terms mean (a) in the case of any Registered
Security, the Person in whose name such Security is registered in
the security register kept by the Issuer for that purpose in
accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Illinois Power" means Illinois Power Company, a
subsidiary of the Issuer.
"Indebtedness" means indebtedness which is for money
borrowed from others. For purposes of Section 3.6 only,
"Indebtedness" shall have the meaning set forth in Section 3.6.
"Indenture" means this instrument as originally
executed and delivered or, if amended or supplemented as herein
provided, as so amended or supplemented or both, and shall
include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Interest" means, when used with respect to
non-interest bearing Securities, interest payable after maturity.
"Issuer" means Illinova Corporation, an Illinois
corporation, and, subject to Article Eight, its successors and
assigns.
"Issuer Order" means a written statement, request or
order of the Issuer signed in its name by the Chairman of the
Board, the President, a Vice President, a Secretary or a
Treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in
Section 10.12.
"Non-Recourse Indebtedness" means indebtedness of the
Issuer or Illinois Power in respect of which the recourse of the
holder of such indebtedness, whether direct or indirect and
whether contingent or otherwise, is effectively limited to
specified assets, and with respect to which (i) neither the
Issuer or Illinois Power provides any credit support, and (ii) a
default thereunder will not result in a default under any
Indebtedness or other obligations of the Issuer or Illinois
Power.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the President or a Vice President, and
by the Controller, Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Issuer and delivered
to the Trustee. Each such certificate shall comply with Section
314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 10.5, if applicable.
"Opinion of Counsel" means an opinion in writing signed
by legal counsel who may be an employee of or counsel to the
Issuer and who shall be satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the Trust Indenture Act
of 1939 and include the statements provided for in Section 10.5,
if applicable.
"Original Issue Date" of any Security (or portion
thereof) means the earlier of (a) the date of such Security or
(b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means any Security
which is issued at a price lower than the principal amount
payable upon the Stated Maturity thereof and that provides for an
amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 4.1.
"Outstanding" when used with reference to Securities,
shall, subject to the provisions of Section 6.4, mean, as of any
particular time, all Securities authenticated and delivered by
the Trustee under this Indenture, except:
(a) securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) securities, or portions thereof, for the payment
or redemption of which moneys or United States Government
Obligations (as provided for in Section 9.1) in the necessary
amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Issuer), provided that if
such Securities, or portions thereof, are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) securities which shall have been paid or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.9
(except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is
held by a Person in whose hands such Security is a legal, valid
and binding obligation of the Issuer).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder or whether a quorum is present at a
meeting of Holders of Securities, (1) the principal amount of an
Original Issue 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 4.1, and (2) the principal
amount of a Security denominated in a foreign currency or
currencies, including composite currencies, shall be the Dollar
equivalent, determined on the date of original issuance of such
Security in the manner provided as contemplated by Section 2.3,
of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in
clause (1) above) of such Security.
"Periodic Offering" means an offering of Securities of
a series from time to time, the specific terms of which
Securities, including, without limitation, the rate or rates of
interest, if any, thereon, the stated maturity or maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon
the issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Principal" whenever used with reference to the
Securities or any Security or any portion thereof, shall be
deemed to include "and premium, if any".
"Record Date" shall have the meaning set forth in
Section 2.7.
"Registered Global Security", means a Security
evidencing all or a part of a series of Registered Securities,
issued to the Depositary for such series in accordance with
Section 2.4, and bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on
the Security register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 10.12.
"Responsible Officer" when used with respect to the
Trustee means the chairman of the board of directors, any vice
chairman of the board of directors, the chairman of the trust
committee, the chairman of the executive committee, any vice
chairman of the executive committee, the president, any vice
president, (whether or not designated by numbers or words added
before or after the title "vice president") the cashier, the
secretary, the treasurer, any trust officer, any senior trust
officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any
assistant treasurer, 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 knowledge of and familiarity with the particular
subject.
"Security" or "Securities" has the meaning stated in
the first recital of this Indenture, or, as the case may be,
Securities that have been authenticated and delivered under this
Indenture.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security or a coupon
representing such installment of interest as the fixed date on
which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means any Person at least a majority of
the outstanding securities of which having ordinary voting power
shall be owned by the Issuer and/or another Subsidiary or
Subsidiaries.
"Trust Indenture Act of 1939" (except as otherwise
provided in Sections 7.1 and 7.2) means the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990, as
in force at the date as of which this Indenture was originally
executed.
"Trustee" means the Person identified as "Trustee" in
the first paragraph hereof and, subject to the provisions of
Article Five, shall also include any successor trustee.
"Trustee" shall also mean or include each Person who is then a
trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any
series shall mean the trustee with respect to the Securities of
such series.
"Unregistered Security" means any Security other than a
Registered Security.
"United States Government Obligations" shall have the
meaning set forth in Section 9.1(A).
"Yield to Maturity" means the yield to maturity on a
series of Securities, calculated at the time of issuance of such
series, or, if applicable, at the most recent redetermination of
interest on such series, and calculated in accordance with
accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each
series and the Coupons, if any, to be attached thereto shall be
substantially in such form (not inconsistent with this Indenture)
as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board
Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent
with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons, if
any.
SECTION 2.2 Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on
all Securities shall be in substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Indenture.
---------------------------------
as Trustee
By ------------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the
Securities of such series may have endorsed thereon, in addition
to or in lieu of the Trustee's certificate of authentication to
be borne by the Securities of each such series, an alternative
Certificate of Authentication substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Indenture.
------------------------------,
as Trustee
By ---------------------------,
as Authenticating Agent
By ---------------------------
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each such
series shall rank equally and pari passu with all other unsecured
and unsubordinated debt of the Issuer, unless the Issuer is
required to secure the Securities pursuant to the debt provisions
described under Article III. There shall be established in or
pursuant to one or more Board Resolutions (and, to the extent
established pursuant to rather than set forth in a Board
Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures
supplemental hereto, prior to the initial issuance of Securities
of any series:
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from
the Securities of all other series;
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 2.8, 2.9, 2.11, 7.5 or 11.3);
(3) if other than Dollars, the coin or currency in
which the Securities of that series are denominated
(including, but not limited to, any Foreign Currency or
ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from
which such interest shall accrue, on which such interest
shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be
determined and (if different) the rate or rates payable
following a default thereunder;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if
other than as provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem
Securities, in whole or in part, at its option and the
period or periods within which, the price or prices at which
and any terms and conditions upon which Securities of the
series may be so redeemed, pursuant to any sinking fund or
otherwise;
(8) the obligation, if any, of the Issuer to redeem,
repurchase or repay Securities of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions
or at the option of a Holder thereof and the price or prices
at which and the period or periods within which and any
terms and conditions upon which Securities of the series
shall be redeemed, repurchased or repaid, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof in the case of Registered
Securities, or $1,000 and $5,000 in the case of Unregistered
Securities, the denominations in which Securities of the
series shall be issuable;
(10) if an Original Issue Discount Security, the method
of calculation of the amount of the principal of the
Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or
currency in which payment of the principal of or interest on
the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities
of such series are to be payable, at the election of the
Issuer or a Holder thereof, in a coin or currency other than
that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of principal of and
interest on the Securities of the series may be determined
with reference to an index based on a coin or currency other
than that in which the Securities of the series are
denominated, the manner in which such amounts shall be
determined;
(14) whether the Securities of the series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities)
or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities or
the payment of interest thereon and, if other than as
provided in Section 2.8, the terms upon which Unregistered
Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer
will pay additional amounts on the Securities of the series
held by a Person who is not a United States Person in
respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will
have the option to redeem such Securities rather than pay
such additional amounts;
(16) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, depositaries, authenticating or
paying agents, transfer agents or registrars or any other
agents with respect to the Securities of such series;
(18) any other Events of Default or covenants with
respect to the Securities of such series; and
(19) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in
the case of Registered Securities as to denomination and
securities issued in a periodic offering and except as may
otherwise be provided by or pursuant to the Board Resolution or
Officers' Certificate referred to above or as set forth in any
such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such Officers'
Certificate or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of
Securities. The Issuer may deliver Securities of any series
having attached thereto appropriate Coupons, if any, executed by
the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the
Trustee shall thereupon authenticate and deliver such Securities
to or upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. The maturity
date, original issue date, interest rate and any other terms of
the Securities of such series and Coupons, if any, appertaining
thereto shall be specified in or pursuant to such Issuer Order
and procedures. If provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to oral
instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in the case
of subparagraphs 2 and 3 below only at or before the time of the
first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 5.1) shall be
fully protected in relying upon, unless and until such documents
have been superceded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities and
Coupons, if any, are not to be delivered to the Issuer,
provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery
to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to
time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures
acceptable to the Trustee as may be specified from time to
time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any
other terms of Securities of such series shall be determined
by an Issuer Order or pursuant to such procedures and (d) if
provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or
electronic instructions from the Issuer or its duly
authorized agent or agents, which instructions shall be
promptly confirmed in writing;
(2) the Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.1
and 2.3 authorizing the issuance of the Securities and by or
pursuant to which the forms and terms of the Securities and
Coupons, if any, were established; and
(3) at the option of the Issuer, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting to
it to rely on an enclosed Opinion of Counsel, substantially
to the effect that:
(a) the forms of the Securities and Coupons, if
any, have been duly authorized and established in
conformity with the provisions of this Indenture;
(b) the terms of the Securities have been duly
authorized and established in conformity with the
provisions of this Indenture;
(c) when the Securities and Coupons, if any, have
been executed by the Issuer 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 have been duly issued
under this Indenture and will be valid and legally
binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be
entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of,
and the performance by the Issuer of its obligations
under, the Securities and Coupons, if any, will not
contravene any provision of applicable law or the
articles of incorporation or by-laws of the Issuer or
any agreement or other instrument binding upon the
Issuer or any of its Subsidiaries that is material to
the Issuer and its Subsidiaries, considered as one
enterprise, or, to the best of such counsel's
knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Issuer or any Subsidiary, and no consent,
approval or authorization of any governmental body or
agency is required for the performance by the Issuer of
its obligations under the Securities and Coupons, if
any, except such as are specified and have been
obtained and such as may be required by the securities
or blue sky laws of the various states in connection
with the offer and sale of the Securities.
In rendering such opinions, such counsel may qualify
any opinions as to enforceability by stating that such
enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law). Such counsel may rely, as to all matters governed by the
laws of jurisdictions and the federal law of the United States,
upon opinions of other counsel (copies of which shall be
delivered to the Trustee), in which case the opinion shall state
that such counsel believes he and the Trustee are entitled so to
rely. As to matters governed by the Laws of the State of New
York, such counsel may assume that the laws of the State of New
York are identical to the laws of the State of Illinois. Such
counsel may also state that, insofar as such opinion involves
factual matters, he has relied, to the extent he deems proper,
upon certificates of officers of the Issuer and its subsidiaries
and certificates of public officials.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the
Trustee, being advised by counsel, determines that such action
may not lawfully be taken by the Issuer or if the Trustee in good
faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders or
would affect the Trustee's own rights, duties or immunities under
the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3
that the Securities of a series are to be issued in the form of
one or more Registered Global Securities, then the Issuer shall
execute and the Trustee shall, in accordance with this Section
and the Issuer Order with respect to such series, authenticate
and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to
all or part of the aggregate principal amount of the Securities
of such series issued and not yet canceled, (ii) shall be
registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless and until
it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary must, at the time of its designation
and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and
any other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities
and, if applicable, each Coupon appertaining thereto shall be
signed on behalf of the Issuer by its Chairman of the Board, its
President, one of its Vice Presidents, or its Treasurer under
its corporate seal (except in the case of Coupons) which may, but
need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers.
The seal of the Issuer may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced
on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any
Security that has been duly authenticated and delivered by the
Trustee.
In case any officer of the Issuer who shall have signed
any of the Securities or Coupons, if any, shall cease to be such
officer before the Security or Coupon so signed (or the Security
to which the Coupon so signed appertains) shall be authenticated
and delivered by the Trustee or disposed of by the Issuer, such
Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such
Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of
such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of
this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only
such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited,
executed by the Trustee by the manual signature of one of its
authorized officers, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. No Coupon
shall be entitled to the benefits of this Indenture or shall be
valid and obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains
shall have been duly executed by the Trustee. The execution of
such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest. The Securities of each series shall be
issuable as Registered Securities or Unregistered Securities in
denominations established as contemplated by Section 2.3 or, with
respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple
thereof. If denominations of Unregistered Securities of any
series are not so established, such Securities shall be issuable
in denominations of $1,000 and $5,000. The Securities of each
series shall be numbered, lettered or otherwise distinguished in
such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of
the Trustee, as evidenced by the execution and authentication
thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in or pursuant to the resolution or resolutions of the
Board of Directors of the Issuer referred to in Section 2.3. The
Securities of each series shall bear interest, if any, from the
date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
Unless specifically otherwise provided in a Board
Resolution, Officers' Certificate or indenture supplemental
hereto provided pursuant to Section 2.3, the Person in whose name
any Registered Security of any series is registered at the close
of business on any record date applicable to a particular series
with respect to any interest payment date for such series shall
be entitled to receive the interest, if any, payable on such
interest payment date notwithstanding any transfer or exchange of
such Registered Security subsequent to the record date and prior
to such interest payment date, except if and to the extent the
Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such
defaulted interest shall be paid to the Persons in whose names
Outstanding Registered Securities for such series are registered
at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail
by or on behalf of the Issuer to the Holders of Registered
Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any
interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of
such series established as contemplated by Section 2.3, or, if no
such date is so established, if such interest payment date is the
first day of a calendar month, the fifteenth day of the next
preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange.
The Issuer will keep or cause to be kept at each office or agency
to be maintained for the purpose as provided in Section 3.2 for
each series of Securities a register in which, subject to such
reasonable regulations as it may prescribe, it will provide for
the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series.
Such register shall be in written form in the English language or
in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register
or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of
any Registered Security of any series at any such office or
agency to be maintained for the purpose as provided in Section
3.2, the Issuer shall execute and the Trustee shall authenticate
and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of the same series,
maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary
global Unregistered Securities) and Coupons (except for Coupons
attached to any temporary global Unregistered Securities) shall
be transferable by delivery.
At the option of the Holder thereof, Registered
Securities of any series (other than a Registered Global
Security, except as set forth below) may be exchanged for a
Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Issuer that shall be maintained
for such purpose in accordance with Section 3.2 and upon payment,
if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified
pursuant to Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for
Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges
hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest
rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant
to Section 2.3, such Unregistered Securities may be exchanged for
Unregistered Securities of such series, maturity date, interest
rate and original issue date having authorized denominations and
an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance
with Section 3.2 or as specified pursuant to Section 2.3, with,
in the case of Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in
default thereto appertaining, and upon payment, if the Issuer
shall so require, of the charges hereinafter provided. Unless
otherwise specified pursuant to Section 2.3, Registered
Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer
provided for in this Indenture shall be promptly canceled and
disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Trustee duly executed by
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such
transaction.
The Issuer shall not be required to exchange or
register a transfer of (a) any Securities of any series for a
period of 15 days next preceding the first mailing of notice of
redemption of Securities of such series to be redeemed or (b) any
Securities selected, called or being called for redemption, in
whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section
2.8, unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Registered Global
Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Registered
Securities of a series represented by one or more Registered
Global Securities notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Registered Securities
or if at any time the Depositary for such Registered Securities
shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to such Registered
Securities. If a successor Depositary for such Registered
Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that
such Registered Securities be represented by one or more
Registered Global Securities shall no longer be effective and the
Issuer will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form
without Coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in
the form of one or more Registered Global Securities shall no
longer be represented by a Registered Global Security or
Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series
in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global
Security, the Depositary for such Registered Global Security may
surrender such Registered Global Security in exchange in whole or
in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and
such Depositary. Thereupon, the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global
Security in a denomination equal to the difference, if any,
between the principal amount of the surrendered Registered
Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant
to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, such Registered Global Security shall
be canceled by the Trustee or its agent. Securities in
definitive registered form without Coupons issued in exchange for
a Registered Global Security pursuant to this Section 2.8 shall
be registered in such names and in such authorized denominations
as the Depositary for such Registered Global Security, pursuant
to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer
or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such
Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such transfer or
exchange.
Notwithstanding anything herein or in the terms of any
series of Securities to the contrary, none of the Issuer, the
Trustee or any agent of the Issuer or the Trustee (any of which,
other than the Issuer, shall rely on an Officers' Certificate and
an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the
Issuer (such as, for example, the inability of the Issuer to
deduct from its income, as computed for Federal income tax
purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities. In case any temporary or definitive Security
or any Coupon appertaining to any Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any
officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, maturity date, interest rate
and original issue date, bearing a number or other distinguishing
symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the
Securities so mutilated, defaced, destroyed, lost or stolen, or
in exchange or substitution for the Security to which such
mutilated, defaced, destroyed, lost or stolen Coupon appertained,
with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in
every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security
or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related
Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon,
the Issuer 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 or its agent) connected therewith. In
case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer
may instead of issuing a substitute Security, pay or authorize
the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to
save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Issuer and
the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series
issued pursuant to the provisions of this Section by virtue of
the fact that any such Security or Coupon is destroyed, lost or
stolen shall constitute an additional contractual obligation of
the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of
such series duly authenticated and delivered hereunder. All
Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or stolen
Securities and Coupons and shall preclude 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 2.10 Cancellation of Securities; Disposition
Thereof. All Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the
Trustee or its agent for cancellation or, if surrendered to the
Trustee, shall be canceled by it; and no Securities or Coupons
shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Trustee or its
agent shall dispose of canceled Securities and Coupons held by it
and deliver a certificate of disposition to the Issuer. If the
Issuer or its agent shall acquire any of the Securities or
Coupons, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities
or Coupons unless and until the same are delivered to the Trustee
or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the
preparation of definitive Securities for any series, the Issuer
may execute and the Trustee shall authenticate and deliver
temporary Securities for such series (printed, lithographed,
typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series
shall be issuable as Registered Securities without Coupons, or as
Unregistered Securities with or without Coupons attached thereto,
of any authorized denomination, and substantially in the form of
the definitive Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities
of such series and thereupon temporary Registered Securities of
such series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer
for such purpose as specified pursuant to Section 3.2, and the
Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal
amount of definitive Securities of the same series having
authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise
established pursuant to Section 2.3. The provisions of this
Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any
series that may be established pursuant to Section 2.3 (including
any provision that Unregistered Securities of such series
initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary or agency located
outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would
be issued in exchange for such temporary global Unregistered
Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The
Issuer covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be
paid the principal of, and interest on, each of the Securities of
such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places,
at the respective times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and
in this Indenture. The interest on Securities with Coupons
attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature. If any temporary Unregistered Security provides that
interest thereon may be paid while such Security is in temporary
form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the
terms of such Security) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest,
in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities
(together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to or upon the
written order of the Holders thereof entitled thereto and, at the
option of the Issuer, may be paid by wire transfer or by mailing
checks for such interest payable to or upon the written order of
such Holders at their last addresses as they appear on the
registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as
any Registered Securities are authorized for issuance pursuant to
this Indenture or are outstanding hereunder, the Issuer will
maintain in the Borough of Manhattan, The City of New York, an
office or agency where the Registered Securities of each series
may be presented for payment, where the Securities of each series
may be presented for exchange as is provided in this Indenture
and, if applicable, pursuant to Section 2.3 and where the
Registered Securities of each series may be presented for
registration of transfer as in this Indenture provided.
The Issuer will maintain one or more offices or
agencies in a city or cities located outside the United States
(including any city in which such an agency is required to be
maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on
any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency
of the Issuer within the United States nor will any payment be
made by transfer to an account in, or by mail to an address in,
the United States unless pursuant to applicable United States
laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding
the foregoing, payments in Dollars of Unregistered Securities of
any series and Coupons appertaining thereto which are payable in
Dollars may be made at an agency of the Issuer maintained in the
Borough of Manhattan, The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other
similar restrictions.
The Issuer will maintain in the Borough of Manhattan,
The City of New York, an office or agency where notices and
demands to or upon the Issuer in respect of the Securities of any
series, the Coupons appertaining thereto or this Indenture may be
served.
The Issuer will give to the Trustee written notice of
the location of each such office or agency and of any change of
location thereof. In case the Issuer shall fail to maintain any
agency required by this Section to be located in the Borough of
Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location of any of
the above agencies, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the
Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series
and any Coupons appertaining thereto may be presented for
payment, where the Securities of that series may be presented for
exchange as provided in this Indenture and pursuant to Section
2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture
provided, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient;
provided, however, that no such designation or rescission shall
in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give
to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office
of Trustee. The Issuer, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 5.9, a Trustee, so that there shall at all
times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer
shall appoint a paying agent other than the Trustee with respect
to the Securities of any series, it will cause 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:
(a) that it will hold all sums received by it as such
agent for the payment of the principal of or interest on the
Securities of such series (whether such sums have been paid
to it by the Issuer or by any other obligor on the
Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, or Coupons
appertaining thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice of any
failure by the Issuer (or by any other obligor on the
Securities of such series) to make any payment of the
principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) that it will at any time during the continuance of
any such failure, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such paying agent.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series,
deposit with the paying agent a sum sufficient to pay such
principal or interest so becoming due, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with
respect to the Securities of any series, it will, on or before
each due date of the principal of or interest on the Securities
of such series, set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly
notify the Trustee of any failure to take such action.
Anything in this Section to the contrary
notwithstanding, but subject to Section 9.1, the Issuer may at
any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section is subject to the provisions of Sections 9.3 and
9.4.
SECTION 3.5 Written Statement to Trustee. The
Issuer will furnish to the Trustee on or before May 31 in each
year (beginning with May 31, 1997) a brief certificate (which
need not comply with Section 10.5) from the principal executive,
financial or accounting officer of the Issuer as to his or her
knowledge of the Issuer's compliance with all conditions and
covenants under the Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice
provided under the Indenture).
SECTION 3.6 Limitations upon Liens. (a) After the
date hereof and so long as any Securities are Outstanding, the
Issuer will not pledge, mortgage, hypothecate or grant a security
interest in, or permit any mortgage, pledge, security interest or
other lien upon, any capital stock of any Subsidiary now or
hereafter owned by the Issuer to secure any Indebtedness
(hereinafter defined), without making effective provisions
whereby the Outstanding Securities shall (so long as such other
Indebtedness shall be so secured) be equally and ratably secured
with any and all such other Indebtedness and any other
indebtedness similarly entitled to be equally and ratably
secured; provided, however, that this restriction shall not apply
to nor prevent the creation or existence of (i) any mortgage,
pledge, security interest, lien or encumbrance upon any such
capital stock created at the time of the acquisition of such
capital stock by the Issuer or within one year after such time to
secure all or a portion of the purchase price for such capital
stock or existing thereon at the time of the acquisition thereof
by the Issuer (whether or not the obligations secured thereby are
assumed by the Issuer), or (ii) any extension, renewal or
refunding of any mortgage, pledge, security interest, lien or
encumbrance described in clause (i) above on capital stock of any
Subsidiary theretofore subject thereto (or substantially the same
capital stock) or any portion thereof.
For purposes of this Section 3.6, "Indebtedness" means
all indebtedness, whether or not represented by bonds,
debentures, notes or other securities, created or assumed by the
Issuer for the repayment of money borrowed. All indebtedness for
money borrowed secured by a lien upon property owned by the
Issuer and upon which indebtedness for money borrowed the Issuer
customarily pays interest, although the Issuer has not assumed or
become liable for the payment of such indebtedness for money
borrowed, shall for purposes of this Section 3.6 be deemed to be
indebtedness of the Issuer. All indebtedness for money borrowed
of others guaranteed as to payment of principal by the Issuer or
in effect guaranteed by the Issuer through a contingent agreement
to purchase such indebtedness for money borrowed shall for
purposes of this Section 3.6 be deemed to be Indebtedness of the
Issuer, but no other contingent obligation of the Issuer in
respect of indebtedness for money borrowed or other obligations
incurred by others shall for purposes of this Section 3.6 be
deemed to be Indebtedness of the Issuer.
In case the Issuer or any Subsidiary shall propose to
pledge, mortgage, hypothecate or grant a security interest in any
capital stock of any Subsidiary owned by the Issuer to secure any
Indebtedness, other than as permitted by clauses (i) and (ii) in
the second preceding paragraph, the Issuer will prior thereto
give written notice thereof to the Trustee, and the Issuer will
prior to or simultaneously with such pledge, mortgage,
hypothecation or grant of security interest, by supplemental
indenture executed to the Trustee (or to the extent legally
necessary to another trustee or an additional or separate
trustee), in form satisfactory to the Trustee, effectively secure
(for so long as other Indebtedness shall be so secured) all the
Securities equally and ratably with such Indebtedness and with
any other indebtedness for money borrowed similarly entitled to
be equally and ratably secured.
(b) Except as otherwise specified as contemplated by
Section 2.3 for Securities of any series, the provisions of
subsection (a) of this Section 3.6 shall not apply in the event
that the Issuer or any Subsidiary shall pledge, mortgage,
hypothecate or grant a security interest in, or permit any
mortgage pledge, security interest or other lien upon, any
capital stock of any Subsidiary now or hereafter owned by the
Issuer to secure any Indebtedness (which would otherwise be
subject to the foregoing restriction) in an aggregate amount
which, together with all other Indebtedness (other than
mortgages, pledges, security interests, liens or encumbrances
permitted by Subsection (a) of this Section 3.6), which would
otherwise be subject to the foregoing restriction, does not at
the time exceed 5% of Consolidated Capitalization.
For purposes of this Section 3.6:
(1) The term "Consolidated Capitalization" means
the sum obtained by adding (i) Consolidated
Shareholders' Equity, (ii) Consolidated Indebtedness
(exclusive of any thereof which is due and payable
within one year of the date such sum is determined)
and, without duplication, (iii) any preference or
preferred stock of the Issuer or any Consolidated
Subsidiary which is subject to mandatory redemption or
sinking fund provisions.
(2) The term "Consolidated Shareholders' Equity"
means the total Assets of the Issuer and its
Consolidated Subsidiaries less all liabilities of the
Issuer and its Consolidated Subsidiaries. As used in
this definition, "liabilities" means all obligations
which would, in accordance with generally accepted
accounting principles, be classified on a balance sheet
as liabilities, including without limitation, (i)
indebtedness secured by property of the Issuer or any
of its Consolidated Subsidiaries whether or not the
Issuer or such Consolidated Subsidiary is liable for
the payment thereof unless, in the case that the Issuer
or such Consolidated Subsidiary is not so liable, such
property has not been included among the Assets of the
Issuer or such Consolidated Subsidiary on such balance
sheet, (ii) deferred liabilities, and (iii)
indebtedness of the Issuer or any of its Consolidated
Subsidiaries that is expressly subordinated in right
and priority of payment to other liabilities of the
Issuer or such Consolidated Subsidiary. As used in
this definition, "liabilities" includes preference or
preferred stock of the Issuer or any Consolidated
Subsidiary only to the extent of any such preference or
preferred stock that is subject to mandatory redemption
or sinking fund provisions.
(3) The term "Consolidated Subsidiary" means at
any date any Subsidiary the financial statements of
which under generally accepted accounting principles
would be consolidated with those of the Issuer in its
consolidated financial statements as of such date.
(4) The "Assets" of any Person means the whole or
any part of its business, property, assets, cash and
receivables.
(5) The term "Consolidated Indebtedness" means
total indebtedness as shown on the consolidated balance
sheet of the Issuer and its Consolidated Subsidiaries.
SECTION 3.7 Luxembourg Publications. In the event
of the publication of any notice pursuant to Section 4.11,
5.9(a), 5.10, 7.2, 9.4, 11.2 or 11.5, the party making such
publication in the Borough of Manhattan, The City of New York and
London shall also, to the extent that notice is required to be
given to Holders of Securities of any series by applicable
Luxembourg law or stock exchange regulation, as evidenced by an
Officers' Certificate delivered to such party, make a similar
publication in Luxembourg.
SECTION 3.8 Securityholders Lists.
(a) If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer
will furnish or cause to be furnished to the Trustee a list in
such form as the Trustee may reasonably require of the names and
addresses of the holders of the Securities of such series
pursuant to Section 312 of the Trust Indenture Act of 1939 (i)
semi-annually not more than 15 days after each record date for
the payment of interest on such Securities, as hereinabove
specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing securities in
each year, and (ii) at such other times as the Trustee may
request in writing, within thirty days after receipt by the
Issuer of any such request as of a date not more than 15 days
prior to the time such information is furnished.
(b) If three or more Holders of Securities (herein
after 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 with respect to their rights under
this Indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication that such
applicants propose to transmit to such other Holders, then the
Trustee shall, within five business days after the receipt of
such application, at its election, either
(i) afford such applicants access to the
information preserved at the time by the Trustee
in accordance with Section 3.8(a), or
(ii) inform such applicants as to the approximate
number of Holders of Securities whose names and
addresses appear in the information preserved at
the time by the Trustee in accordance with Section
3.8(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other
communication, if any, specified in such
application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each Holder of
Securities whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section
3.8(a) a copy of the form of proxy or other communication that 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 interest of the Holders of
Securities 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 objections so sustained have
been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders of Securities
with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise, the Trustee shall be relieved
of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities or coupons, by
receiving and holding the same, agrees with the Issuer and the
Trustee that neither the Issuer nor the Trustee nor any agent of
either of them 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 Section 3.8(b),
regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section
3.8(b).
SECTION 3.9 Reports by the Issuer. The Issuer
covenants to file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents, and
other reports which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934.
SECTION 3.10 Reports by the Trustee. Any Trustee's
report required under Section 313(a) of the Trust Indenture Act
of 1939 shall be transmitted on or before July 15 in each year
following the date hereof, so long as any Securities are
outstanding hereunder, and shall be dated as of a date convenient
to the Trustee no more than 60 nor less than 45 days prior
thereto.
SECTION 3.11 Waiver of Certain Covenants. The Issuer
may omit in any particular instance to comply with any term,
provision or condition set forth in Section 3.6 with respect to
the Securities of any series if before the time for such
compliance the Holders of a majority in principal amount of the
Outstanding Securities of such series shall either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Issuer and the duties of
the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration
of Maturity; Waiver of Default. "Event of Default" with respect
to Securities of any series wherever used herein, means each one
of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative
or governmental body):
(a) default in the payment of all or any part of the
principal on any of the Securities of such series as and
when the same shall become due and payable either at
maturity, upon any redemption, by declaration of
acceleration or otherwise;
(b) default in the payment of any instalment of
interest upon any of the Securities of such series as and
when the same shall become due and payable, and continuance
of such default for a period of 30 days;
(c) default in the performance, or breach, of any
covenant or warranty of the Issuer in the Securities of such
series (other than a covenant or warranty in respect of the
Securities of such series a default in whose performance or
whose breach is elsewhere in this Section specifically dealt
with) and continuance of such default or breach for a period
of 90 days after there has been given, by registered or
certified mail, to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of
all series affected thereby, a written notice specifying
such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(d) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Issuer a bankrupt
or insolvent, or approving as properly filed a petition
seeking reorganization arrangement, adjustment or
composition of or in respect of the Issuer under the Federal
bankruptcy law or any other applicable Federal or state law,
or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Issuer or of
any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days;
(e) the institution by the Issuer of proceedings to be
adjudicated a bankrupt or insolvent or the consent by it to
the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under the Federal
bankruptcy law or any other applicable Federal or state law,
or the consent by it to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the
Issuer or of any substantial part of its property, or the
making by it of a general assignment for the benefit of
creditors;
(f) the acceleration of the maturity of any
indebtedness for borrowed money of the Issuer or Illinois
Power or the failure to pay any portion of such indebtedness
when due and payable after the expiration of any applicable
grace period (in each case, other than the Securities of
such series or Non-Recourse Indebtedness) having an
aggregate principal amount outstanding in excess of
$25,000,000, if such acceleration is not rescinded or
annulled, such failure to pay is not cured, or such
indebtedness shall not have been discharged, within 15 days
after written notice thereof to the Issuer by either the
Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of such series; or
(g) any other Event of Default provided in the
supplemental indenture under which such series of Securities
is issued or in the form of Security for such series;
provided, however, that, except as otherwise may be established
for a series of Senior Debt Securities, the occurrence of any of
the events described in the foregoing clause (c) or (g) shall not
constitute an Event of Default if such occurrence is the result
of changes in generally accepted accounting principles as
recognized by the American Institute of Certified Public
Accountants at the date as of which this Indenture is executed
and a certificate to such effect is delivered to the Trustee by
the Issuer's independent public accountants.
If an Event of Default described in clauses (a), (b),
(c) or (g) (if the Event of Default under clause (c) or (g), as
the case may be, is with respect to less than all series of
Securities then Outstanding) occurs and is continuing, then, and
in each and every such case, except for any series of Securities
the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of each such
affected series then Outstanding hereunder (voting as a single
class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue
Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all Securities of
all such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and payable.
If an Event of Default described in clause (c) or (g) (if the
Event of Default under clause (c) or (g), as the case may be, is
with respect to all series of Securities then Outstanding), (d)
or (e) occurs and is continuing, then and in each and every such
case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by
notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding, and interest accrued thereon, if
any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of the
Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the Issuer
shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities
of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of each such series (or
of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of each such series (or at the
respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or
deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor
Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal
of Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided
herein--then and in every such case the Holders of a majority in
aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single
class, then Outstanding, by written notice to the Issuer and to
the Trustee, may waive all defaults with respect to each such
series (or with respect to all the Securities, as the case may
be) and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Original Issue Discount Securities shall
have been accelerated and declared due and payable pursuant to
the provisions hereof, then, from and after such declaration,
unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full
of such Original Issue Discount Securities.
SECTION 4.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt. The Issuer covenants that (a) in case
default shall be made in the payment of any instalment of
interest on any of the Securities of any series when such
interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case
default shall be made in the payment of all or any part of the
principal of any of the Securities of any series when the same
shall have become due and payable, whether upon maturity of the
Securities of such series or upon any redemption or by
declaration or otherwise - then upon demand of the Trustee, the
Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall
have become due and payable on all Securities of such series, and
such Coupons, for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal
and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer
may pay the principal of and interest on the Securities of any
series to the registered Holders, whether or not the Securities
of such series be overdue.
In case the Issuer 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 proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or
other obligor upon the Securities and collect in the manner
provided by law out of the property of the Issuer or other
obligor upon the Securities, wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to
the Issuer or any other obligor upon the Securities under Title
11 of the United States Code or any other applicable Federal or
state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon
the Securities, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of
any series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad
faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or
such other obligor,
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the
Securities of any series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation
or other bankruptcy or insolvency proceedings or Person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other
property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims
of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the
event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the
Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of any 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 except, as aforesaid, to
vote for the election of a trustee in bankruptcy or similar
Person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or
Coupons appertaining to such Securities, may be enforced by the
Trustee without the possession of any of the Securities of such
series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of
the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities
or Coupons appertaining to such Securities in respect of which
such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Securities or
Coupons appertaining to such Securities in respect to which such
action was taken, and it shall not be necessary to make any
Holders of such Securities or Coupons appertaining to such
Securities parties to any such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of
any series shall be applied in the following order at the date or
dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining
to such Securities in respect of which monies have been collected
and stamping (or otherwise noting) thereon the payment, or
issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable
to such series in respect of which monies have been collected,
including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys and
of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith;
SECOND: In case the principal of the Securities of
such series in respect of which moneys have been collected shall
not have become and be then due and payable, to the payment of
interest on the Securities of such series in default in the order
of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of
such series for principal and interest, with interest upon the
overdue principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference
or priority of principal over interest or Yield to Maturity, or
of interest or Yield to Maturity over principal, or of any
instalment of interest over any other instalment of interest, or
of any Security of such series over any other Security of such
series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to
the Issuer or any other Person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event
of Default has occurred, has not been waived and is continuing,
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 this
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.
SECTION 4.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had
been taken.
SECTION 4.6 Limitations on Suits by Securityholders.
No Holder of any Security of any series or of any Coupon
appertaining thereto shall have any right by virtue or by
availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of each affected
series then Outstanding (treated as a single class) shall have
made written request upon the Trustee to institute such action or
proceedings 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 or proceeding and no
direction inconsistent with such written request shall have been
given to the Trustee pursuant to Section 4.9; it being understood
and intended, and being expressly covenanted by the taker and
Holder of every Security or Coupon with every other taker and
Holder and the Trustee, that no one or more Holders of Securities
of any series or Coupons appertaining to such Securities shall
have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice
the rights of any other such Holder of Securities or Coupons
appertaining to 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 the applicable series and Coupons
appertaining to such Securities. 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.
SECTION 4.7 Unconditional Right of Securityholders
to Institute Certain Suits. Notwithstanding any other provision
in this Indenture and any provision of any Security, the right of
any Holder of any Security or Coupon to receive payment of the
principal of and interest on such Security or Coupon on or after
the respective due dates expressed or provided for in such
Security or Coupon, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section
4.6 and the last paragraph of Section 2.9, no right or remedy
herein conferred upon or reserved to the Trustee or to the
Holders of Securities or Coupons is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons 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 Event of Default or an acquiescence therein;
and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Holders of
Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons.
SECTION 4.9 Control by Holders of Securities. The
Holders of a majority in aggregate principal amount of the
Securities of each series affected (with all such series voting
as a single class) at the time Outstanding shall have the right
to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and
the provisions of this Indenture and provided further that
(subject to the provisions of Section 5.1) the Trustee shall have
the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible
Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders
of the Securities of all series so affected not joining in the
giving of said direction, it being understood that (subject to
Section 5.1) the Trustee shall have no duty to ascertain whether
or not such actions or forebearances are unduly prejudicial to
such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction or
directions by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in
Section 4.1, the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding
with respect to which an Event of Default shall have occurred and
be continuing (voting as a single class) may on behalf of the
Holders of all such Securities waive any past default or Event of
Default described in Section 4.1 and its consequences, except a
default (1) in the payment of the principal of or any premium or
interest on any Security of such series, or (2) in respect of a
covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In
the case of any such waiver, the Issuer, the Trustee and the
Holders of all such Securities 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.
Upon any such waiver, such default shall cease to exist
and be deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have
been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
thereon.
SECTION 4.11 Trustee to Give Notice of Default, But
May Withhold in Certain Circumstances. The Trustee shall, within
30 days after the occurrence of a default with respect to the
Securities of any series of which the Trustee has actual notice,
give notice in compliance with Section 10.4 of all defaults with
respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to
the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and,
if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of
such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act of 1939, unless in each case
such defaults shall have been cured before the mailing or
publication of such notice (the term "defaults" for the purpose
of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case
of default in the payment of the principal of or interest on any
of the Securities of such series, or in the payment of any
sinking fund instalment on such 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 or trustees and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is
in the interests of the Securityholders of such series.
SECTION 4.12 Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree,
and each Holder of any Security or Coupon by his acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder or group of Securityholders
of any series holding in the aggregate more than 10% in aggregate
principal amount of the Securities of such series, or, in the
case of any suit relating to or arising under clause (c) or (g)
of Section 4.1 (if the suit relates to Securities of more than
one but less than all series), l0% in aggregate principal amount
of Securities then Outstanding and affected thereby, or in the
case of any suit relating to or arising under clause (c) or (g)
(if the suit under clause (c) or (g) relates to all the
Securities then Outstanding), (d) or (e) of Section 4.1, 10% in
aggregate principal amount of all Securities then Outstanding, or
to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of or interest on any Security on
or after the due date expressed in such Security or any date
fixed for redemption.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the
Trustee; During Default; Prior to Default. With respect to the
Holders of any series of Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of
Securities 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.
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 wilful misconduct,
except that
(a) prior to the occurrence of an Event of Default
with respect to the Securities of any series and after the
curing or waiving of all such Events of Default with respect
to such series which may have occurred:
(i) the duties and obligations of the Trustee
with respect to the Securities of any series shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable 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 conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but
in the case of any such statements, 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;
(b) 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; and
(c) 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 pursuant to
Section 4.9 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.
None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable ground for believing that
the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 5.1 are in furtherance
of and subject to Sections 315 and 316 of the Trust Indenture Act
of 1939.
SECTION 5.2 Certain Rights of the Trustee. In
furtherance of and subject to the Trust Indenture Act of 1939,
subject to Section 5.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officers' Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, Coupon, Security or other
paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the
Issuer mentioned herein shall be sufficiently evidenced by
an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any
written advice or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts 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 reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, 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, order, approval,
appraisal, bond, debenture, note, Coupon, Security, or other
paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected
then Outstanding; provided 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 expenses or
liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys not regularly
in its employ and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not
be accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities
or Coupons; Collections, etc. The Trustee or any agent of the
Issuer or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons with the
same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the
same rights it would have if it were not the Trustee or such
agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the
provisions of Section 9.4 hereof, all moneys 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 mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
SECTION 5.6 Compensation and Indemnification of
Trustee and Its Prior Claim. The Issuer 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) and the Issuer covenants and agrees
to pay or reimburse the Trustee and each predecessor Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its
employ) except any such expense, disbursement or advance as may
result from its negligence or bad faith. The Issuer also
covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending
itself against or investigating any claim of liability in the
premises. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor Trustee
and to pay or reimburse the Trustee and each predecessor Trustee
for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim 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 or Coupons, and the Securities are
hereby subordinated to such senior claim.
SECTION 5.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 5.1 and 5.2, whenever in
the administration of the trusts 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 any action
hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of
negligence or 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 negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as
Trustee. The Trustee for each series of Securities hereunder
shall at all times be a corporation organized and doing business
under the laws of the United States of America or of any State or
the District of Columbia having a combined capital and surplus of
at least $5,000,000, and which is eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of a Federal,
State or District of Columbia 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.
SECTION 5.9 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one
or more or all series of Securities by giving written notice of
resignation to the Issuer and (i) if any Unregistered Securities
of a series affected are then Outstanding, by giving notice of
such resignation to the Holders thereof, by publication at least
once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.7, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered
Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act of 1939 at such addresses as
were so furnished to the Trustee and (iii) by mailing notice of
such resignation to the Holders of then Outstanding Registered
Securities of each series affected at their addresses as they
shall appear on the registry books. Upon receiving such notice
of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of the
Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series 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, or any Securityholder who has been a bona fide Holder of
a Security or Securities of the applicable series for at least
six months may, subject to the provisions of Section 4.12, 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:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act
of 1939 with respect to any series of Securities after
written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 310(a) of the
Trust Indenture Act of 1939 and shall fail to resign
after written request therefor by the Issuer or by any
Securityholder; or
(iii) the Trustee shall become incapable of
acting with respect to any series of Securities, or
shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator 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 Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for 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 Trustee so removed
and one copy to the successor trustee, or, subject to Section
315(e) of the Trust Indenture Act of 1939, any Securityholder who
has been a bona fide Holder of a Security or Securities of such
series for at least six months may on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor trustee with respect to such series. 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 each series at the time
Outstanding may at any time remove the Trustee with respect
to Securities of such series and appoint a successor trustee
with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in
Section 6.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with
respect to any series and any appointment of a successor
trustee with respect to such series pursuant to any of the
provisions of this Section 5.9 shall become effective upon
acceptance of appointment by the successor trustee as
provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in Section
5.9 shall execute and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid, the
trustee ceasing to act shall, subject to Section 9.4, pay over to
the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the
Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or
funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 5.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the
predecessor trustee and each successor trustee with respect to
the Securities of any applicable series shall execute and deliver
an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor
trustee with respect to the Securities of any series as to which
the predecessor trustee is not retiring shall continue to be
vested in the predecessor trustee, and shall add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor trustee
as provided in this Section 5.10, the Issuer shall give notice
thereof (a) if any Unregistered Securities of a series affected
are then Outstanding, to the Holders thereof, by publication of
such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section
3.7, at least once in an Authorized Newspaper in Luxembourg), (b)
if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of
the Trust Indenture Act of 1939, by mailing such notice to such
Holders at such addresses as were so furnished to the Trustee
(and the Trustee shall make such information available to the
Issuer for such purpose) and (c) to the Holders of Registered
Securities of each series affected, by mailing such notice to
such Holders at their addresses as they shall appear on the
registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with
the notice called for by Section 5.9. If the Issuer fails to give
such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee. 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
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section
5.8, 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 at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities of any series shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee and
deliver such Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right
to adopt the certificate of authentication of any predecessor
trustee or to authenticate Securities of any series in the name
of any predecessor trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 5.12 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act of 1939, 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 of 1939 and this Indenture.
SECTION 5.13 Preferential Collection of Claims
Against the Issuer. The Trustee shall comply with Section 311(a)
of the Trust Indenture Act of 1939, excluding any creditor
relationship described in Section 311(b) of the Trust Indenture
Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to
the extent included therein.
SECTION 5.14 Appointment of Authenticating Agent. As
long as any Securities of a series remain Outstanding, the
Trustee may, by an instrument in writing, appoint with the
approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on
behalf of the Trustee to authenticate Securities, including
Securities issued upon exchange, registration of transfer,
partial redemption or pursuant to Section 2.9. Securities of
each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the
Trustee. Whenever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the
Trustee or to the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery
on behalf of the Trustee by an Authenticating Agent for such
series and a certificate of authentication executed on behalf of
the Trustee by such Authenticating Agent. Such Authenticating
Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$5,000,000 (determined as provided in Section 5.8 with respect to
the Trustee) and subject to supervision or examination by Federal
or State authority.
Any corporation into which any Authenticating Agent may
be merged or converted, or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee or such
Authenticating Agent.
4 Any Authenticating Agent may at any time, and if it
shall cease to be eligible shall, resign by giving written notice
of resignation to the Trustee and to the Issuer. The Trustee may
at any time terminate the Agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent
and to the Issuer. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 5.12 with respect to one or
more series of Securities, the Trustee may upon receipt of an
Issuer Order appoint a successor Authenticating Agent and the
Issuer shall provide notice of such appointment to all Holders of
Securities of such series in the manner and to the extent
provided in Section 5.10. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as
Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action
taken by it as such at the direction of the Trustee.
Sections 5.2, 5.3, 5.4, 5.6, 5.8, 5.12 and 6.3 shall be
applicable to any Authenticating Agent.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by
Securityholders. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage
of Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Sections 5.1 and 5.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of
Holding of Securities. Subject to Sections 5.1 and 5.2, the
execution of any instrument by a Securityholder or his agent or
proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder
of any instrument may be proved by the certificate of any
notary public or other officer of any jurisdiction
authorized to take acknowledgments of deeds or administer
oaths that the Person executing such instruments
acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also
constitute sufficient proof of the authority of the Person
executing the same. The fact of the holding by any Holder
of an Unregistered Security of any series, and the
identifying number of such Security and the date of his
holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company,
bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate
shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the
date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer
by the Person named in such certificate. Any such
certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified
therein. The holding by the Person named in any such
certificate of any Unregistered Securities of any series
specified therein shall be presumed to continue for a period
of one year from the date of such certificate unless at the
time of any determination of such holding (1) another
certificate bearing a later date issued in respect of the
same Securities shall be produced, or (2) the Security of
such series specified in such certificate shall be produced
by some other Person, or (3) the Security of such series
specified in such certificate shall have ceased to be
Outstanding. The fact and date of the execution of any such
instrument and the amount and numbers of Securities of any
series held by the Person so executing such instrument and
the amount and numbers of any Security or Securities for
such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the
Trustee for such series or in any other manner which the
Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the
ownership of such Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 6.3 Holders to be Treated as Owners. The
Issuer, the Trustee and any agent of the Issuer or the Trustee
may deem and treat the Person in whose name any Security shall be
registered upon the Security register for such series as the
absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or
on account of the principal of and, subject to the provisions of
this Indenture, interest on such Security and for all other
purposes; and neither the Issuer nor the Trustee nor any agent of
the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes
and neither the Issuer, the Trustee, nor any agent of the Issuer
or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such Person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys
payable upon any such Unregistered Security or Coupon.
SECTION 6.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or
all series have concurred in any direction, consent or waiver
under this Indenture, Securities which are owned by the Issuer or
any other obligor on the Securities with respect to which such
determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities with respect to which such determination is being
made 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
which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Issuer
or any other obligor upon the Securities or any Person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request
of the Trustee, the Issuer shall furnish to the Trustee promptly
an Officers' Certificate listing and identifying all Securities,
if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to
Sections 5.1 and 5.2, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such
determination.
SECTION 6.5 Right of Revocation of Action Taken. At
any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 6.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, 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 Securities issued in exchange or
substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is
made upon any such Security. Any action taken by the Holders of
the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent
of Securityholders. The Issuer, when authorized by a resolution
of its Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance
with or pursuant to an Officers' Certificate), and the Trustee
may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
series any property or assets;
(b) to evidence the succession of another corporation
to the Issuer, or successive successions, and the assumption
by the successor corporation of the covenants, agreements
and obligations of the Issuer pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the
Issuer and the Trustee shall consider to be for the
protection of the Holders of Securities or Coupons, and to
make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided
in this Indenture as herein set forth; provided, 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 an Event of Default or may limit the
remedies available to the Trustee upon such an Event of
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 an Event of Default;
(d) 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 any other provisions as the Issuer may
deem necessary or desirable, provided that no such action
shall adversely affect the interests of the Holders of the
Securities or Coupons;
(e) to establish the form or terms of Securities of
any series or of the Coupons appertaining to such Securities
as permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to
the requirements of Section 5.10.
The Trustee is hereby authorized to join with the
Issuer in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, 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 without the consent of the
Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article Six) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a
resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the
Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders
of the Securities of each such series or of the Coupons
appertaining to such Securities; provided, that no such
supplemental indenture shall (a) extend the final maturity of any
Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce
any amount payable on redemption thereof, or make the principal
thereof (including any amount in respect of original issue
discount) or interest thereon payable in any coin or currency
other than that provided in the Securities and Coupons or in
accordance with the terms thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof
pursuant to Section 4.1 or the amount thereof provable in
bankruptcy pursuant to Section 4.2, or alter the provisions of
Section 10.11 or 10.12 or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the
option of the Securityholder, in each case without the consent of
the Holders of each Security so affected, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of
the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so
affected.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of
Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy
of a resolution of the Board of Directors (which resolution may
provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order) certified by
the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders
of the Securities as aforesaid and other documents, if any,
required by Section 6.1, the Trustee shall join with the Issuer
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.
It shall not be necessary for the consent of the
Securityholders 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 Issuer and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall give notice thereof (i) to the
Holders of then Outstanding Registered Securities of each series
affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders
thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939,
by mailing a notice thereof by first-class mail to such Holders
at such addresses as were so furnished to the Trustee and (iii)
if any Unregistered Securities of a series affected thereby are
then Outstanding, to all Holders thereof, by publication of a
notice thereof at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section
3.7, at least once in an Authorized Newspaper in Luxembourg), and
in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the
Issuer to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon
the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall 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 Issuer and the Holders
of Securities of each 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 7.4 Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 5.1 and 5.2, may
receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article Seven complies with the applicable
provisions of this Indenture.
SECTION 7.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in
form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer May Consolidate, etc., Only on
Certain Terms. The Issuer shall not consolidate with or merge
into any other corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
unless:
(a) the corporation formed by such consolidation or
into which the Issuer is merged or the Person which acquires
by conveyance, transfer or lease the properties and assets
of the Issuer substantially as an entirety shall expressly
assume, by a supplemental indenture hereto, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of
and interest on all the Securities and Coupons, if any,
according to their tenor, and the performance of every
covenant of this Indenture on the part of the Issuer to be
performed or observed;
(b) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing;
(c) the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance, transfer or
lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided
for relating to such transaction have been complied with;
and
(d) the Issuer has delivered to the Trustee such other
documents as the Trustee may, in its discretion, reasonably
require.
SECTION 8.2 Successor Corporation Substituted. In
case of any such consolidation, merger, sale, lease or
conveyance, and following such an assumption by the successor
Person, such successor Person shall succeed to and be substituted
for the Issuer, with the same effect as if it had been named
herein. Such successor Person may cause to be signed, and may
issue either in its own name or in the name of the Issuer prior
to such succession any or all of the Securities issuable
hereunder which together with any Coupons appertaining thereto
theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor
Person, instead of the Issuer, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities
together with any Coupons appertaining thereto which previously
shall have been signed and delivered by the officers of the
Issuer to the Trustee for authentication, and any Securities
which such successor Person thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All of the
Securities so issued together with any Coupons appertaining
thereto 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.
In case of any such consolidation, merger, sale, lease
or conveyance, such changes in phrasing and form (but not in
substance) may be made in the Securities and Coupons thereafter
to be issued as may be appropriate.
In the event of any such sale or conveyance (other than
a conveyance by way of lease) the Issuer or any successor Person
which shall theretofore have become such in the manner described
in this Article shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be
liquidated and dissolved.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Issuer shall have paid or caused to
be paid the principal of and interest on all the Securities of
any series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee
for cancellation all Securities of any series theretofore
authenticated and all unmatured Coupons appertaining thereto
(other than any Securities of such series and Coupons
appertaining thereto which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in
Section 2.9) or (c) in the case of any series of Securities where
the exact or maximum amount (including the currency of payment)
of principal of and interest due on which can be determined at
the time of making the deposit referred to in clause (ii) below,
(i) all the Securities of such series and all unmatured Coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the
entire amount in cash (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 9.4)
or, in the case of any series of Securities the payments on which
may only be made in Dollars, direct obligations of the United
States of America, backed by its full faith and credit (and not
subject to redemption or prepayment at the option of the holders
thereof) ("United States Government Obligations"), maturing as to
principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof,
sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal or
interest is due and payable and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable
in accordance with the terms of the Indenture and the Securities
of such series; and if, in any such case, the Issuer shall also
pay or cause to be paid all other sums payable hereunder by the
Issuer with respect to the Securities of such series, then this
Indenture with respect to the Securities of such series shall
cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities of such
series and of Coupons appertaining thereto and the Issuer's right
of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities and Coupons appertaining thereto
to receive payments of principal thereof and interest thereon,
upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and
Coupons appertaining thereto as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or
any of them, and (vi) the obligations of the Issuer under Section
3.2) and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost
and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture
with respect to the Securities of such series; provided, that the
rights of Holders of the Securities and Coupons to receive
amounts in respect of principal of and interest on the Securities
and Coupons held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The
Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the
Securities of such series.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided
in a Board Resolution, Officers' Certificate or indenture
supplemental hereto provided pursuant to Section 2.3. In
addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the
exact or maximum amounts (including the currency of payment) of
principal of and interest due on which can be determined at the
time of making the deposit referred to in clause (a) below, the
Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such a series and the
Coupons appertaining thereto on the 91st day after the date of
the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of
such series and Coupons appertaining thereto shall no longer be
in effect (except as to (i) rights of registration of transfer
and exchange of Securities of such series and of Coupons
appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of
Holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration),
and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of the
Holders of Securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them and (vi)
the obligations of the Issuer under Section 3.2) and the Trustee,
at the expense of the Issuer, shall at the Issuer's request,
execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series and
Coupons appertaining thereto (i) cash in an amount, or (ii)
in the case of any series of Securities the payments on
which may only be made in Dollars, United States Government
Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or
interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture
and the Securities of such series;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, any agreement
or instrument to which the Issuer is a party or by which it
is bound;
(c) the Issuer has delivered to the Trustee an Opinion
of Counsel (from an expert in matters relating to Federal
income tax law who is not an employee of the Issuer) based
on the fact that (x) the Issuer has received from, or there
has been published by, the Internal Revenue Service a ruling
or (y) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the
effect that, and such opinion shall confirm that, the
Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal
income tax on the same amounts, in the same manner and at
the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred;
(d) the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating
to the defeasance contemplated by this provision have been
complied with;
(e) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to the Securities shall have occurred and be
continuing on the date of such deposit or, insofar as
subsections 4.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(f) such covenant defeasance contemplated by this
provision shall not cause any Securities then listed on any
registered national securities exchange under the Securities
Exchange Act of 1934, as amended, to be delisted; and
(g) such covenant defeasance shall not cause the
Trustee to have a conflicting interest as described in
Section 310 of the Trust Indenture Act of 1939 with respect
to any securities of the Issuer.
(C) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided
in a Board Resolution, Officers' Certificate or indenture
supplemental hereto provided pursuant to Section 2.3. In the
case of any series of Securities the exact or maximum amounts
(including the currency of payment) of principal of and interest
due on which can be determined at the time of making the deposit
referred to in clause (a) below, the Issuer shall be released
from its obligations under Sections 3.6 and 8.1 with respect to
the Securities of any such series, and any Coupons appertaining
thereto, Outstanding on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with
respect to the Outstanding Securities of any series, the Issuer
may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in such Sections,
whether directly or indirectly by reason of any reference
elsewhere herein to such Sections or by reason of any reference
in such Sections to any other provision herein or in any other
document and such omission to comply shall not constitute an
Event of Default under Section 4.1, but the remainder of this
Indenture and such Securities and Coupons shall be unaffected
thereby. The following shall be the conditions to application of
this subsection C of this Section 9.1:
(a) the Issuer has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust for
the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series and
Coupons appertaining thereto, (i) cash in an amount, or (ii)
in the case of any series of Securities the payments on
which may only be made in Dollars, United States Government
Obligations maturing as to principal and interest at such
times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal and
interest is due and payable and (B) any mandatory sinking
fund payments on the day on which such payments are due and
payable in accordance with the terms of the Indenture and
the Securities of such series;
(b) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to the Securities shall have occurred and be
continuing on the date of such deposit or, insofar as
subsections 4.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(c) such covenant defeasance shall not cause the
Trustee to have a conflicting interest as described in
Section 310 of the Trust Indenture Act of 1939 with respect
to any securities of the Issuer;
(d) such covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the
Issuer is a party or by which it is bound;
(e) such covenant defeasance shall not cause any
Securities then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.;
(f) the Issuer shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel (from an expert
in matters relating to Federal income tax law who is not an
employee of the Issuer) to the effect that the Holders of
the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not
occurred; and
(g) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating
to the covenant defeasance contemplated by this provision
have been complied with.
SECTION 9.2 Application by Trustee of Funds
Deposited for Payment of Securities. Subject to Section 9.4, all
moneys deposited with the Trustee (or other trustee) pursuant to
Section 9.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including
the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining
thereto for the payment or redemption of which such moneys have
been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such money need not
be segregated from other funds except to the extent required by
law.
SECTION 9.3 Repayment of Moneys Held by Paying
Agent. In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any series, all moneys
then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon
demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years. Any moneys deposited with
or paid to the Trustee or any paying agent for the payment of the
principal of or interest on any Security of any series or Coupons
attached thereto and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall
have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such
paying agent, and the Holder of the Securities of such series and
of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to moneys
deposited with it for any payment (a) in respect of Registered
Securities of any series, shall at the expense of the Issuer,
mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b)
in respect of Unregistered Securities of any series, shall at the
expense of the Issuer cause to be published once, in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and once in an Authorized Newspaper in London (and if
required by Section 3.7, once in an Authorized Newspaper in
Luxembourg), notice, that such moneys remain and that, after a
date specified therein, which shall not be less than 30 days from
the date of such mailing or publication, any unclaimed balance of
such money then remaining will be repaid to the Issuer.
SECTION 9.5 Indemnity for United States Government
Obligations. The Issuer shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the United States Government Obligations deposited
pursuant to Section 9.1 or the principal or interest received in
respect of such obligations.
SECTION 9.6 Excess Funds. The Trustee shall deliver
to the Issuer from time to time upon Issuer Order any United
States Government Obligations or money held by it as provided in
Section 9.1 which, as expressed in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may
include the applicable such opinion delivered to the Trustee
pursuant to Section 9.1), are then in excess of the amount
thereof which then would have been required to be deposited for
the purpose for which such obligations or money were deposited or
received.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of
any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of
any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities
and the Coupons appertaining thereto by the Holders thereof and
as part of the consideration for the issue of the Securities and
the Coupons appertaining thereto.
SECTION 10.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of Securities and Coupons.
Nothing in this Indenture, in the Securities or in the Coupons
appertaining thereto, expressed or implied, shall give or be
construed to give to any Person, other than the parties hereto
and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons, if any.
SECTION 10.3 Successors and Assigns of Issuer Bound
by Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or in behalf of the
Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Trustee
and Holders of Securities and Coupons. 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 or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another
address of the Issuer is filed by the Issuer with the Trustee) to
Illinova Corporation, 000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Treasurer. Any notice, direction, request or
demand by the Issuer or any Holder of Securities or Coupons to or
upon the Trustee shall be deemed to have been sufficiently given
or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided herein) addressed
(until another address of the Trustee is filed by the Trustee
with the Issuer) to The First National Bank of Chicago, c/o First
Chicago Trust Company of New York, 00 Xxxx Xxxxxx, 0xx Xxxxx,
Window 2, Xxx Xxxx, XX 00000, Attn: Corporate Trust
Administration.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security
register. In any case where notice to such Holders is given by
mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable
to mail notice to the Issuer when such notice is required to be
given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory
to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein. Upon any
application or demand by the Issuer to the Trustee to take any
action under any of the provisions of this Indenture, the Issuer
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.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion
as to whether or not such covenant or condition has been complied
with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of
the Issuer may be based, insofar as it relates to legal matters,
upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters,
information with respect to which is in the possession of the
Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of
the Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of
public accountants filed with and directed to the Trustee shall
contain a statement that such firm is independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of
the Securities of any series or any Coupons appertaining thereto
or the date fixed for redemption or repayment of any such
Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and
effect as if made on the date of maturity or the date fixed for
redemption or repayment, and no interest shall accrue for the
period after such date.
SECTION 10.7 Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture by operation of
Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision
shall control.
SECTION 10.8 New York Law to Govern. This Indenture
and each Security and Coupon shall be deemed to be a contract
under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of
law.
SECTION 10.9 Counterparts. 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 10.10 Effect of Headings. The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 10.11 Securities in a Foreign Currency or in
ECU. Unless otherwise specified in an Officers' Certificate
delivered pursuant to Section 2.3 of this Indenture with respect
to a particular series of Securities, whenever for purposes of
this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities
of all series or all series affected by a particular action at
the time Outstanding and, at such time, there are Outstanding
Securities of any series which are denominated in a coin or
currency other than Dollars (including ECUs), then the principal
amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the
Market Exchange Rate as of the date of initial issuance of such
Securities. For purposes of this Section 10.11, Market Exchange
Rate as of any date shall mean the noon Dollar buying rate in New
York City for cable transfers of that currency on such date as
published by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, Market Exchange Rate shall mean the
rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the
Official Journal of the European Communities (such publication or
any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with respect to
such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of
exchange as published in the Journal, as of the most recent
available date, or quotations or, in the case of ECUs, rates of
exchange from one or more major banks in The City of New York or
in the country of issue of the currency in question, which for
purposes of the ECU shall be Brussels, Belgium, or such other
quotations or, in the case of ECU, rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other
than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee
regarding the Market Exchange Rate alternative determination
provided for in the preceding paragraph shall be in its sole
discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 10.12 Judgment Currency. The Issuer agrees,
to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of
the principal of or interest on the Securities of any series (the
"Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which
a final unappealable judgment is entered, unless such day is not
a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with
the Judgment Currency on the New York Banking Day preceding the
day on which a final unappealable judgment is entered, and (b)
its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment (whether or not
entered in accordance with subsection (a)), in any currency other
than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of
the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sum due
under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Saturday, Sunday or a legal
holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required
by law or executive order to close.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The
provisions of this Article shall be applicable to the Securities
of any series which are redeemable before their maturity or to
any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 11.2 Notice of Redemption; Partial
Redemptions. Notice of redemption to the Holders of Registered
Securities of any series to be redeemed as a whole or in part at
the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice
of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act of 1939, shall be given by mailing notice of
such redemption, by first class mail, postage prepaid, at least
30 days and not more than 60 prior to the date fixed for
redemption, to such Holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice
given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption
to all other Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and in an Authorized Newspaper in London
(and, if required by Section 3.7, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 nor
more than 60 days prior to the date fixed for redemption. Any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or
any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any
other Security of such series.
The notice of redemption to each such Holder shall
specify the principal amount of each Security of such series held
by such Holder to be redeemed, the date fixed for redemption, the
redemption price, the numbers of the certificate for such
Security being redeemed, the place or places of payment, that
payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with Coupons attached
thereto, of all Coupons appertaining thereto maturing after the
date fixed for redemption, that such redemption is pursuant to
the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be
redeemed in part only the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, 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.
The notice of redemption of Securities of any series to
be redeemed at the option of the Issuer shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the name
and at the expense of the Issuer.
On or before the redemption date specified in the
notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more paying
agents (or, if the Issuer is acting as its own paying agent, set
aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the
appropriate redemption price, together with accrued interest to
the date fixed for redemption. The Issuer will deliver to the
Trustee at least 70 days prior to the date fixed for redemption
an Officers' Certificate stating the aggregate principal amount
of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction
on such redemption or subject to compliance with a condition
precedent, the Issuer shall deliver to the Trustee, prior to the
giving of any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such restriction
or condition precedent has been complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Securities of such series to be
redeemed in whole or in part. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.
SECTION 11.3 Payment of Securities Called for
Redemption. If notice of redemption has been given as above
provided, the Securities or portions of Securities 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 interest accrued to the date fixed for redemption,
and on and after said date (unless the Issuer shall default in
the payment of such Securities at the redemption price, together
with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto
shall be void, and, except as provided in Sections 5.5 and 9.4,
such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect
of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at
a place of payment specified in said notice, together with all
Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for
redemption shall be payable in the case of Securities with
Coupons attached thereto, to the Holders of the Coupons for such
interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the
terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security with Coupons attached thereto is
surrendered for redemption and is not accompanied by all
appurtenant Coupons maturing after the date fixed for redemption,
the surrender of such missing Coupon or Coupons may be waived by
the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security redeemed in part
only, the Issuer shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof, at the
expense of the Issuer, a new Security or Securities of such
series, of authorized denominations, in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in an
Officers' Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of the 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 the
Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment
is to be made is herein referred to as the "sinking fund payment
date".
To the extent specifically provided in the terms of any
Security established pursuant to this Indenture, in lieu of
making all or any part of any mandatory sinking fund payment with
respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon
redemption pursuant to the mandatory sinking fund) by the Issuer
or receive credit for Securities of such series (not previously
so credited) theretofore purchased or otherwise acquired (except
as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for
optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms
of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
On or before the 60th day next preceding each sinking
fund payment date for any series, the Issuer will deliver to the
Trustee an Officers' Certificate (which need not contain the
statements required by Section 10.5) (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment
of cash and the portion to be satisfied by credit of Securities
of such series and the basis for such credit, (b) stating that
none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest
or Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right
to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking
fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor
as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee).
Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such
60th day, to deliver such Officers' Certificate and Securities
specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking
fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in respect
thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency or ECU) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency or ECU) if the Issuer shall so request with respect to
the Securities of any particular series, such cash shall be
applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and
the Issuer makes no such request then it shall be carried over
until a sum in excess of $50,000 (or the equivalent thereof in
any Foreign Currency or ECU) is available. The Trustee shall
select, in the manner provided in Section 11.2, for redemption on
such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may
be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or
portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers'
Certificate delivered to the Trustee at least 60 days prior to
the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a)
the Issuer or (b) an entity specifically identified in such
Officers' Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in
Section 11.2 (and with the effect provided in Section 11.3) for
the redemption of Securities of such series in part at the option
of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for
such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity
is accelerated), which are not held for the payment or redemption
of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for
the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on such sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed
any Securities of a series with sinking fund moneys or give any
notice of redemption of Securities for such series by operation
of the sinking fund during the continuance of a default in
payment of interest on such Securities or of any Event of Default
with respect to such series, except that, where the giving of
notice of redemption of any Securities shall theretofore have
been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Issuer
a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys
thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to
have been collected under Article Four and held for the payment
of all such Securities. In case such Event of Default shall have
been waived as provided in Section 4.10 or the default cured on
or before the sixtieth day preceding the sinking fund payment
date in any year, such moneys shall thereafter be applied on the
next succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
ARTICLE TWELVE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 12.1 Purposes for Which Meetings May Be
Called. A meeting of Holders of Securities of any or all series
may be called at any time and from time to time pursuant to this
Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders or
Securities of such series.
SECTION 12.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose
specified in Section 12.1, to be held at such time and at
such place as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting
forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall
be given, in the manner provided in Section 10.4, not less
than 20 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Issuer, pursuant to a
Board Resolution, or the Holders of at least 10 percent in
aggregate principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any
purpose specified in Section 12.1, by written request
setting forth in reasonable detail the action proposed to be
taken at the meeting and if the Trustee shall not have made
the first publication of the notice of such meeting within
20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer or the Holders of
Securities of such series in the amount above specified, as
the case may be, may determine the time and the place for
such meeting and may call such meeting for such purposes by
giving notice thereof as provided in Subsection (a) of this
Section.
SECTION 12.3 Persons Entitled to Vote at Meetings. To
be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed
by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder
or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and
any representatives of the Issuer and its counsel.
SECTION 12.4 Quorum; Action. The Persons entitled to
vote a majority in aggregate principal amount of the Outstanding
Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if
any action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides may be
given by the Holders of a specified percentage, which is greater
than a majority in aggregate principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such
specified percentage in aggregate principal amount of the
Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at
the request of the Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section
12.2(a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as
provided above, of the aggregate principal amount of the
Outstanding Securities of such series which shall constitute a
quorum.
Except as limited by the proviso to Section 7.2, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso
to Section 7.2, any resolution with respect to any consent or
waiver which this Indenture expressly provides may be given by
the Holders of a specified percentage, which is greater than a
majority in aggregate principal amount of the Outstanding
Securities of the series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present
as aforesaid only by the affirmative vote of the Holders of such
specified percentage in aggregate principal amount of the
Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 7.2, any
resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority,
in aggregate principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in
aggregate principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting
of Holder of Securities of any series duly held in accordance
with this Section shall be binding on all of the Holders of
Securities of a series and the related coupons, whether or not
present or represented at the meeting.
SECTION 12.5 Determination of Voting; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of
Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 6.1 and
the appointment of any proxy shall be proved in the manner
specified in Section 6.1 or by having the signature of the
person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 6.1 to
certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 6.1 or other
proof.
(b) Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Issuer or by Holders
of Securities as provided in Section 12.2(b), in which case
the Issuer or the Holders of Securities of the series
calling the meeting, as the case may be, shall appoint a
temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such
series and each proxy shall be entitled to one vote for each
$1,000 principal of the Outstanding Securities of such
series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect
of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except
as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 12.2 at which a quorum is
present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without
further notice.
SECTION 12.6 Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting
of Holders of Securities of any series shall by written ballots
on which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make the file with the
secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least
in duplicate of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to such record the
original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that such notice was given as provided in
Section 12.2 and, if applicable, Section 12.4. Each copy shall
be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be
delivered to the Issuer, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
________________________________
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 February 1,
1997.
ILLINOVA CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxxx
------------------------
Xxxxx X. Xxxxxxxxxxx
Chief Financial Officer, Treasurer
and Controller
[CORPORATE SEAL]
Attest:
By /s/ Xxxx Xxxxxxx Stetzner
-------------------------
Xxxx Xxxxxxx Stetzner
General Counsel and Corporate Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By:/s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
[CORPORATE SEAL]
Attest:
By : /s/ Xxx Xxxxxx
---------------------
Name: Xxx Xxxxxx
Title: Trust Officer
STATE OF ILLINOIS )
) ss.:
COUNTY OF,_______ )
On this ____ of _________, 1997 before me personally came
___________, to me personally known, who, being by me duly sworn,
did depose and say that he is __________ of Illinova Corporation,
one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
--------------------------
Notary Public
STATE OF )
) ss.:
COUNTY OF,_______)
On this ____ of ______, 1997 before me personally came
___________, to me personally known, who, being by me duly sworn,
did depose and say that he is a __________ of _____________, one
of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
----------------------------
Notary Public
CHI3:77747.7 02.06.97 17.08