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CITIZENS UTILITIES COMPANY,
To
CHEMICAL BANK,
Trustee
-----------------------------------
INDENTURE
Dated as of _________, 1995
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CITIZENS UTILITIES COMPANY
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture,
dated as of __________, 1995.
Trust Indenture
Act Section Indenture Section
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Sec. 310(a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.9
(b) 6.8, 6.10
Sec. 311(a) 6.13
(b) 6.13
Sec. 312(a) 7.1,7.2(a)
(b) 7.2(b)
(c) 7.2(c)
Sec. 313(a) 7.3(a)
(b) 7.3(a)
(c) 7.3(a)
(d) 7.3(b)
Sec. 314(a) 7.4
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
Sec. 315(a) 6.1
(b) 6.2,2.7
(c) 6.1
(d) 6.1
(d)(1) 6.1
(e) 5.14
Sec. 316(a) 10.1
(a)(1)(A) 5.2,5.12
(a)(1)(B) 5.2,5.13
(a)(2) Not Applicable
(b) 5.8
(c) 1.4(c)
Sec. 317(a)(1) 5.3
(a)(2) 5.4
(b) 1.3
Sec. 318(a) 1.7
NOTE: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
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PARTIES 1
RECITALS OF THE COMPANY 1
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1 Definitions 1
Section 1.2 Compliance Certificates and Opinions 7
Section 1.3 Form of Documents Delivered to Trustee 7
Section 1.4 Acts of Holders 8
Section 1.5 Notices, Etc., to Trustee or Company 9
Section 1.6 Notice to Holders; Waiver 9
Section 1.7 Conflict with Trust Indenture Act 10
Section 1.8 Effect of Headings and Table of Contents 10
Section 1.9 Successors and Assigns 10
Section 1.10 Separability Clause 10
Section 1.11 Benefits of Indenture 10
Section 1.12 Governing Law 10
Section 1.13 Legal Holidays 10
ARTICLE 2
Security Forms
Section 2.1 Forms Generally 11
Section 2.2 Form of Trustee's Certificate of Authentication 12
ARTICLE 3
The Securities
Section 3.1 Amount Unlimited; Issuable in Series 12
Section 3.2 Denominations 15
Section 3.3 Execution, Authentication, Delivery and Dating 15
Section 3.4 Temporary Securities 17
Section 3.5 Registration, Registration of Transfer and Exchange 17
(i)
TABLE OF CONTENTS
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Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities 18
Section 3.7 Payment of Interest; Interest Rights Preserved 19
Section 3.8 Persons Deemed Owners 21
Section 3.9 Cancellation 22
Section 3.10 Computation of Interest 22
Section 3.11 Book-Entry Securities 22
ARTICLE 4
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture 24
Section 4.2 Application of Trust Money 25
Section 4.3 Reinstatement 26
ARTICLE 5
Remedies
Section 5.1 Events of Default 27
Section 5.2 Acceleration of Maturity; Rescission and Annulment 28
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee 29
Section 5.4 Trustee May File Proofs of Claim 30
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities 31
Section 5.6 Application of Money Collected 31
Section 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert or Exchange 32
Section 5.9 Restoration of Rights and Remedies 33
Section 5.10 Rights and Remedies Cumulative 33
Section 5.11 Delay or Omission Not Waiver 33
Section 5.12 Control by Holders 33
Section 5.13 Waiver of Past Defaults 34
Section 5.14 Undertaking for Costs 34
Section 5.15 Waiver of Stay or Extension Laws 35
(ii)
TABLE OF CONTENTS
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ARTICLE 6
The Trustee
Section 6.1 Certain Duties and Responsibilities 35
Section 6.2 Notice of Defaults 35
Section 6.3 Certain Rights of Trustee 35
Section 6.4 Not Responsible for Recitals or Issuance of Securities 36
Section 6.5 May Hold Securities 37
Section 6.6 Money Held in Trust 37
Section 6.7 Compensation and Reimbursement 37
Section 6.8 Disqualification; Conflicting Interests 38
Section 6.9 Corporate Trustee Required; Eligibility 38
Section 6.10 Resignation and Removal; Appointment of Successor 38
Section 6.11 Acceptance of Appointment by Successor 40
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business 41
Section 6.13 Preferential Collection of Claim Against Company 41
Section 6.14 Appointment of Authenticating Agent 41
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses
of Holders 43
Section 7.2 Preservation of Information; Communications to Holders 43
Section 7.3 Reports by Trustee 44
Section 7.4 Reports by Company 44
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms 44
Section 8.2 Successor Substituted 45
(iii)
TABLE OF CONTENTS
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ARTICLE 9
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders 45
Section 9.2 Supplemental Indentures with Consent of Holders 47
Section 9.3 Execution of Supplemental Indentures 48
Section 9.4 Effect of Supplemental Indentures 48
Section 9.5 Conformity with Trust Indenture Act 48
Section 9.6 Reference in Securities to Supplemental Indentures 48
ARTICLE 10
Covenants
Section 10.1 Payment of Principal, Premium and Interest 49
Section 10.2 Maintenance of Office or Agency 49
Section 10.3 Money for Securities Payments to Be Held in Trust 49
Section 10.4 Corporate Existence 51
Section 10.5 Waiver of Certain Covenants 51
Section 10.6 Certificate to Trustee 51
ARTICLE 11
Redemption of Securities
Section 11.1 Applicability of Article 52
Section 11.2 Election to Redeem; Notice to Trustee 52
Section 11.3 Selection by Trustee of Securities to Be Redeemed 52
Section 11.4 Notice of Redemption 53
Section 11.5 Deposit of Redemption Price 54
Section 11.6 Securities Payable on Redemption Date 54
Section 11.7 Securities Redeemed in Part 54
(iv)
TABLE OF CONTENTS
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ARTICLE 12
Sinking Funds
Section 12.1 Applicability of Article 55
Section 12.2 Satisfaction of Sinking Fund Payments with Securities 55
Section 12.3 Redemption of Securities for Sinking Fund 55
ARTICLE 13
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance 56
Section 13.2 Defeasance and Discharge 56
Section 13.3 Covenant Defeasance 57
Section 13.4 Conditions to Defeasance or Covenant Defeasance 57
Section 13.5 Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions 59
Section 13.6 Reinstatement 60
ARTICLE 14
Immunity of Incorporators, Shareholders,
Officers and Directors
Section 14.1 Indenture and Securities Solely Corporate
Obligations 61
(v)
INDENTURE, dated as of _________, 1995, from CITIZENS UTILITIES COMPANY,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal administrative
offices at High Ridge Park, Building No. 3, Stamford, Connecticut 06905, to
CHEMICAL BANK, a New York banking corporation, as Trustee (herein called the
"Trustee"), having its principal corporate trust office at 450 West 33rd
Street, New York, New York 10001.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
Page 1
(4) 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.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Securities.
"Board of Directors", when used with reference to the Company, means either
the board of directors, or any duly authorized committee of the board of
directors, of the Company, as the case requires.
"Board Resolution", when used with reference to the Company, means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" means any Security registered in the name of CEDE &
Co., as nominee of DTC, or any successor to CEDE & Co. and/or DTC.
"Business Day" means any day other than a day on which banking institutions
in The City of New York are authorized or obligated by law or executive order
to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order, as
the case may be, signed in the name of the Company, by its Chairman of the
Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
Page 2
"Conversion Agent" means any Person authorized by the Company to convert
any Securities on behalf of the Company.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally
administered, which office, as at the date of this Indenture, is located at
450 West 33rd Street, 15th Floor, New York, New York 10001, Attn: Corporate
Trustee Administration Department.
The term "corporation" includes corporations, associations, companies and
business trusts.
The terms "defeasance" and "covenant defeasance" bear the meanings assigned
to such terms, respectively, by Sections 13.2 and 13.3.
"Delayed Interest" has the meaning specified in Section 3.7.
"DTC" or "Depository" means the securities depository, The Depository Trust
Company, New York, New York, and any successor.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Agent" means any Person authorized by the Company to exchange any
Securities on behalf of the Company.
"Fiscal Year" means with respect to the Company, the fiscal year ending
December 31 of each year or such other date as the Company may hereafter
elect, and with respect to any other Person, the calendar year or other
annual accounting period of the Person in question.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established
as contemplated by Section 3.1.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Letter of Representation", with respect to the Securities of any series,
means that certain agreement by and among the Company, the Trustee and DTC
setting forth the rights
Page 3
and duties of DTC and its nominee to act as depository and registered owner,
with respect to such Securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section
5.2.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money (or in the case
of payment by defeasance under Section 13.2, money, U.S. Government
obligations or both) in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that, if such
--------
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made and provided further, in the case of payment by defeasance
----------------
under Section 13.2, that all conditions precedent to the application of such
Section shall have been satisfied; and
(iii) Securities which have been paid pursuant to Section 3.6 or
surrendered for conversion or exchange into other securities or in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
Page 4
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (i)
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 5.2, (ii) the
principal amount of a Security denominated in a foreign currency or
currencies shall be the U.S. dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case
of an Original Issue Discount Security, the U.S. dollar equivalent on the
date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security, and (iii) Securities owned by the
Company, or any other obligor upon the Securities or any Affiliate of the
Company, or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be 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 independent right so to act
with respect to such Securities and that the pledgee is not the Company, or
any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1 or, if not so specified, the City of New York,
New York.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
Page 5
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, means any
officer in the Corporate Trust Office of the Trustee and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"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 as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company, or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, provided, however, that
-------- -------
in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended, except as provided in Section
9.5 or Section 10.6.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee"
shall mean or include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning set forth in Section 13.4.
"Vice President", when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added
before or after the title "vice president".
Page 6
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency, but shall
not include securities convertible into such Voting Stock.
Section 1.2 Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless
Page 7
such officer knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Section 6.1) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or,
if later, the date of the most recent list of Holders
Page 8
required to be provided pursuant to Section 7.1) prior to such first
solicitation or vote, as the case may be. With regard to any record date,
only the Holders on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
Section 1.5 Notices, Etc., to Trustee or Company.
------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 1.6 Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. 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.
Page 9
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may
be.
Section 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 1.11 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 1.12 Governing Law.
-------------
This Indenture, and the Securities, shall be governed by and construed in
accordance with the laws of the State of New York.
Section 1.13 Legal Holidays.
--------------
Page 10
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date on which a Holder has the right to
convert or exchange his Securities shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities) payment of interest or principal (and premium, if any) or
conversion or exchange of the Securities need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, or on
such last day for conversion or exchange, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, except that if such succeeding
Business Day falls in the next calendar year, payment shall be made on the
immediately preceding Business Day.
ARTICLE 2
Security Forms
Section 2.1 Forms Generally.
---------------
The Securities of each series shall be in substantially such form as shall
be established by or pursuant to a Board Resolution or, to the extent
authorized by a Board Resolution, an Officers' Certificate, or as set forth
in, or in an Exhibit to, any indenture supplemental hereto which establishes
such series in each case substantially in the form annexed to such Board
Resolution, Officers' Certificate or supplemental indenture, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of such
Securities. If the form of Securities of any series of such Securities is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities 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, as evidenced by their
execution of such Securities.
Page 11
Section 2.2 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
By_________________________________
Authorized Signatory
ARTICLE 3
The Securities
Section 3.1 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. There shall be
established in or pursuant to a Board Resolution or, to the extent authorized
by a Board Resolution, an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of
any series, such of the following as may be appropriate to such series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person or Persons to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security
is registered at the close of business on the Regular Record Date for such
interest or the method of determining the same;
(4) the date or dates on which the principal of the Securities of the
series is payable or the method of determining the same;
Page 12
(5) the rate or rates (or method for establishing 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, the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date and/or
Special Record Date for the interest payable on any Interest Payment Date or
other date on which interest is paid (or method for establishing such date
or dates);
(6) the form of payment (whether by cash, securities or other property)
in satisfaction of interest requirements of the Securities of the series;
(7) the right of the Company, if any, to defer interest with respect the
Securities of the series;
(8) any subordination terms of the Securities of the series;
(9) the place or places where the principal of (and premium, if any) and
interest on Securities of the series shall be payable;
(10) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company;
(11) if applicable, the terms and conditions upon which the Securities
of the series may be convertible or exchangeable, in whole or in part;
(12) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which Secu-
rities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(13) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(14) if other than the full principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(15) if other than such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public or private
debts, the currency or currencies (including composite currencies) or
securities or other property in which payment of the principal of (and
premium, if any) and/or interest on the Securities of such series shall be
payable;
Page 13
(16) if the principal of (and premium, if any) and/or interest on the
Securities of such series are to be payable, at the election of the Company
or any Holder, in a currency or currencies (including composite currencies)
or securities or other property other than that in which the Securities are
stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(17) if the amounts of payments of principal of (and premium, if any)
and/or interest on the Securities of such series may be determined with
reference to an index, the manner in which such amounts shall be determined;
(18) in the case of Securities of a series the terms of which are not
established pursuant to subsection (15), (16) or (17) above, the application,
if any, of Section 13.2 and/or Section 13.3 to the Securities of such series;
or, in the case of Securities the terms of which are established pursuant to
subsection (15), (16) or (17) above, the adoption and applicability to such
Securities of any terms and conditions similar to those contained in Section
13.2 and/or Section 13.3;
(19) if applicable, the issuance of a global security representing all
of the Securities of such series and exchange of such global Security for
definitive or other Securities representing such series, or the issuance of
global securities of any other nature;
(20) any addition to, deletion or modification of any Event of Default
applicable to such series;
(21) any provisions providing for or governing one or more series of
global Securities, bearer Securities or Securities proposed to be listed or
quoted on or in any exchange or market, within or without the United States
of America, including provisions which establish the form and terms of such
Securities, including interest coupons, and govern the manner of payment of
principal and interest, registration and exchange of Securities, notice to
Holders, Acts of Holders, waivers and any and all other aspects thereof; and
(22) any other terms of the series (which terms shall not be in conflict
with the provisions of this Indenture which apply to such series).
All Securities of any one series shall be substantially identical except
as to interest rates, method for determining interest rates, Interest Payment
Dates, Regular Record Dates, redemption terms, Stated Maturity, denomination,
date of authentication, currency or other property, any index for determining
amounts payable, and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth or determined as provided in such
Officers' Certificate or in any such indenture supplemental hereto.
Page 14
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 Denominations.
-------------
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, one of its Vice Presidents or its Treasurer,
under its corporate seal reproduced thereon attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions or Officers'
Certificates as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) if the form of any of such Securities has been established by or
pursuant to Board Resolution or Officers' Certificate as permitted by Section
2.1, that such form has been established in conformity with the provisions
of this Indenture;
(b) if the terms of any of such Securities have been established by or
pursuant to Board Resolution or Officers' Certificate as permitted by Section
3.1, that such terms have been established in conformity with the provisions
of this Indenture; and
Page 15
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general equity principles.
If the Company shall establish pursuant to Section 3.1 that the Securities
of a series are to be issued in the form of one or more registered global
securities, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such
series, authenticate and deliver one or more registered global securities
that (a)(i) shall represent and shall be denominated in an amount equal to
the aggregate principal amount of all of the Securities of such series issued
and not yet canceled, (ii) shall be registered in the name of DTC or a
nominee of DTC, (iii) shall be delivered by the Trustee to DTC or pursuant
to DTC'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 trans-
ferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC or any such nominee to a successor
to DTC or a nominee of such successor" or such other legend as shall be
acceptable to DTC; or (b) shall comply with such other terms or procedures
as may be set forth in a Company Order with respect to such series.
Notwithstanding that such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture would adversely affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.1 or the Company Order and Opinion
of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled
to the benefits of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 3.9,
Page 16
together with an Officers' Certificate (which need not comply with Section
1.2 and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order, the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive securities in lieu of which they
are issued, with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series and of like
tenor, of authorized denominations. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
Section 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
Page 17
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption
of Securities of that series selected for redemption under Section 11.3 and
ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor
a new Security of the same series and of like tenor and principal amount, and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them
and any agent of any of them harmless then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security
Page 18
of the same series and of like tenor and principal amount, and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmen-
tal charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Unless otherwise provided as contemplated by Section 3.1 with respect to
any series of Securities, interest on any Security which is payable (unless
payment has been deferred pursuant to the exercise of a right of the Company
so to defer), and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for for any reason, including the exercise
of a right of the Company to defer such interest payment, on any Interest
Payment Date (herein called "Delayed Interest") shall forthwith cease to be
payable to the Person entitled to such interest by virtue of having been such
Holder, and such Delayed Interest may be paid by the Company, at its election
in each case, as provided in Clauses (1), (2) or (3) below:
(1) With respect to any Delayed Interest resulting from the exercise of
a right of the Company to defer such Delayed Interest, the Company may elect
to make payment, in whole or in part, as hereinafter provided in this
subparagraph (1). The Company may elect to make payment to the Persons in
whose names the Securities of such series are registered at the close of
business on a Special Record Date for the payment of such Delayed Interest,
which shall be fixed by the Company in the
Page 19
following manner: The Company shall notify the Trustee in writing of the
amount of Delayed Interest proposed to be paid on each Security of such
series, the date of the proposed payment, if payment is to be in shares of
Common Stock (the "Special Stock Transfer and Valuation Date"), and the date
of the proposed payment if payment is to be in cash (the "Special Cash
Interest Payment Date"), which shall also be the "Special Distribution
Payment Date" for purposes of the Partnership Preferred Securities and the
Convertible Preferred Securities and the related distribution. Thereupon the
Company shall fix a special record date (the "Special Record Date") for the
payment of such Delayed Interest which shall be not more than 35 days and not
less than 10 days prior to the date of the proposed payment. The Company
shall promptly cause notice of the proposed payment of such Delayed Interest
and the Special Record Date, Special Stock Transfer and Valuation Date,
Special Cash Interest Payment Date and Special Distribution Payment Date
therefor to be mailed, first-class postage prepaid, or delivered by courier
service or by hand delivery or by any other manner deemed practicable by the
Trustee, to each Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Delayed Interest and
such dates therefor having been so mailed or delivered, such Delayed Interest
shall be paid to the Persons in whose names the Securities of such series are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clauses (2) or (3).
(2) With respect to any Delayed Interest which has not been the subject
of the exercise of the Company's right to defer, the Company may elect to
make payment of any Delayed Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment
of such Delayed Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Delayed Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Delayed Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Delayed Interest as in this Clause provided. Thereupon the
Trustee shall fix a special record date (the "Special Record Date") for the
payment of such Delayed Interest which shall be not more than 30 days and not
less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Delayed Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, or delivered
by courier service or by hand delivery, or by any other manner deemed
practicable by the Trustee, to each Holder of Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such
Page 20
Special Record Date. Notice of the proposed payment of such Delayed Interest
and the Special Record Date therefor having been so mailed or delivered, such
Delayed Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (3).
(3) The Company may make payment of any Delayed Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed or any book-entry security system which may be applicable to the
Debentures, and upon such notice as may be required by such exchange or
system, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Security which is converted or exchanged (other than
exchanges pursuant to Section 3.5) after any Regular Record Date or Special
Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security whose Maturity is prior to such Interest Payment
Date), interest whose Stated Maturity is on such Interest Payment Date shall
be payable on such Interest Payment Date notwithstanding such conversion or
exchange, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on such
Regular Record Date or Special Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Security
which is converted or exchanged, interest whose Stated Maturity is after the
date of conversion or exchange of such Security shall not be payable, and the
Company shall not make nor be required to make any other payment, adjustment
or allowance with respect to accrued but unpaid interest on the Securities
being converted or exchanged.
Section 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 3.7) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Page 21
Section 3.9 Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee
for cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order from the Company or in the absence of such Company Order, in accordance
with the Trustee's standard procedures.
Section 3.10 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section 3.11 Book-Entry Securities.
---------------------
(a) Except as provided in subsection (c) of this Section 3.11, the
registered owner of all Securities of any series of Securities which is
designated as a Book-Entry Security series in the Board Resolution, Officers'
Certificate, indenture supplemental hereto establishing such series, or other
instrument supplemental hereto, shall be CEDE & Co., as nominee of DTC.
Payment of interest for any Securities registered as of each Record Date in
the name of CEDE & Co. shall be made by wire transfer to the account of CEDE
& Co. on the Interest Payment Date for such Securities at the address
indicated on the Record Date for CEDE & Co. in the registration books of the
Company kept by Trustee, as Security Registrar.
(b) With respect to any Book-Entry Securities, the Securities shall be
issued or registered in the form of one or more fully registered global
securities in the principal amount of each separate series of the Securities.
Upon issuance or registration, the ownership of such Securities shall be
registered in the registration books of the Company kept by the Trustee in
the name of CEDE & Co., as nominee of DTC. The Trustee and the Company may
treat DTC (or its nominee) as the sole and exclusive owner of the Securities
registered in its name for the purposes of payment of the principal of,
premium, if any, or interest on such Securities, giving any notice permitted
or required to be given to Holders under this Indenture, registering the
transfer of such Securities, obtaining any consent or other action to be
taken by Holders and for all other purposes whatsoever; and neither the
Trustee nor the Company shall be affected by any notice to the contrary.
Neither the Trustee nor the Company shall have any responsibility or
obligation to any DTC participant, any Person claiming a beneficial ownership
interest in Securities registered in
Page 22
the name of CEDE & Co. under or through DTC or any DTC participant, or any
other Person which is not shown on the registration books of the Company kept
by the Trustee as being a Holder with respect to the accuracy of any records
maintained by DTC, CEDE & Co. or any DTC participant; the payment by DTC or
any DTC participant to any beneficial owner of any amount in respect of the
principal of, premium, if any, or interest on the Securities registered in
the name of CEDE & Co.; the delivery to any DTC participant or any beneficial
owner of any notice which is permitted or required to be given to Holders
under this Indenture; the selection by DTC or any DTC participant of any
Person to receive payment in the event of a partial payment of any Securities
registered in the name of CEDE & Co.; or any consent given or other action
taken by DTC as Holder. The Paying Agent shall pay all principal of,
premium, if any, and interest on any Securities registered in the name of
CEDE & Co., only to or upon the order of CEDE & Co., as nominee of DTC, and
all such payments shall be valid and effective to fully satisfy and discharge
the Company's obligations with respect to the principal of, premium, if any,
and interest on such Securities to the extent of the sum or sums so paid.
Upon delivery by DTC to the Trustee of written notice to the effect that DTC
had determined to substitute a new nominee in place of CEDE & Co., and
subject to the provisions herein with respect to record dates, the words
"CEDE & Co." in this Indenture shall refer to such new nominee of DTC.
(c) With respect to any series of Securities proposed to be registered in
the name of CEDE & Co., in the event that (i) DTC gives or has given notice
that it will discontinue its services as securities depository for such
series of Securities; or (ii) DTC ceases or has ceased to be a clearing house
registered under the Securities Exchange Act of 1934; or (iii) the Company
in its sole discretion determines or has determined that the beneficial
owners of such Securities will be entitled to obtain definitive certificates;
or (iv) an Event of Default with respect to such series has occurred and is
continuing, the Company shall, if the event is triggered by either (i) or
(ii) above, attempt to locate another qualified securities depository. If
the Company fails to locate such a replacement or if the event is triggered
by either (iii) or (iv) above, then it shall notify DTC and the Trustee,
requesting DTC to notify its participants, of the availability through DTC
of definitive certificates. In any such event, the Trustee shall issue,
register the transfer of and exchange definitive certificates as requested
by DTC and any other Holders in appropriate amounts. The Company and the
Trustee shall be obligated to deliver definitive certificates as described
in this Indenture. In the event definitive certificates are issued to
Holders other than DTC, the provisions of this Indenture shall apply to,
among other things, the registration, transfer of and exchange of such
certificates and the method of payment of principal of, premium, if any, and
interest on such certificates. Whenever DTC requests the Company and the
Trustee to do so, the Trustee and the Company will cooperate with DTC in
taking appropriate action after reasonable notice (i) to make available one
or more separate certificates evidencing the Securities registered in the
name of CEDE & Co., to any DTC participant having Securities credited to its
DTC account or (ii) to arrange for another securities depository to maintain
custody of certificates evidencing such Securities. If the Company uses a
securities depository other than DTC, the provisions of this Section shall
apply with the appropriate modifications.
Page 23
(d) Notwithstanding any other provision of this Indenture to the contrary,
so long as any Securities are registered in the name of CEDE & Co., as
nominee of DTC, all payments with respect to the principal of, premium, if
any, and interest on such Securities and all notices, with respect to such
Securities shall be made and given to DTC as provided in the applicable
Letter of Representation.
(e) In connection with any notice or other communication to be provided
to Holders pursuant to this Indenture by the Company or the Trustee with
respect to any consent or other action to be taken by Holders so long as any
Securities of a series are registered in the name of CEDE & Co., as nominee
of DTC, the Company or the Trustee, as the case may be, shall establish a
record date for such consent or other action and give DTC notice of such
record date not less than 15 calendar days in advance of such record date to
the extent possible.
(f) The notice requirements set forth in the Letter of Representation
relating to the Securities of any series with respect to redemptions,
conversions and mandatory tenders shall be effective whenever such Securities
are Book-Entry Securities, notwithstanding any other provisions of this
Indenture, to the extent such other provisions are incompatible with the
notice requirements set forth in the Letter of Representation.
ARTICLE 4
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, exchange, registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, on the demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held
in trust by, the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
Page 24
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2
and the last paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1, all money and U.S.
Government Obligations deposited with the Trustee pursuant to Section 13.2
or Section 13.3 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Section 13.2
or Section 13.3, shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with or received by the Trustee as contemplated by Section
4.1, Section 13.2 or Section 13.3. All moneys deposited with the Trustee
(and held by it or any Paying Agent) for the payment of any Securities which
are subsequently converted or exchanged shall be returned to the Company upon
Company Request.
Page 25
Section 4.3 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or securities
in accordance with Section 4.2 of this Indenture, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section
4.1 of this Indenture until such time as the Trustee or Paying Agent is
permitted to apply all such money or securities in accordance with Section
4.2 of this Indenture; provided that, if the Company has made any payment of
--------
principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money or securities held
by the Trustee or Paying Agent.
Page 26
ARTICLE 5
Remedies
Section 5.1 Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 60 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifical-
ly dealt with or which has expressly been included in this Indenture solely
for the benefit of a series of Securities other than that series), 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 Company by the Trustee
or to the Company and the Trustee by the Holders of a majority in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or
Page 27
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by either of them of an
assignment for the benefit of creditors, or the admission by either of them
in writing of its inability to pay its debts generally as they become due,
or the talking of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect to Securities of
that series;
it being understood that in each case (other than those described in
paragraphs (1) through (3) above to the extent the Trustee is the Paying
Agent for the Securities of such series) the Trustee shall not be deemed to
have knowledge of an Event of Default hereunder unless a Responsible Officer
has received written notice thereof.
Nothing contained in this Section 5.1 shall limit the rights of the Company
to add, delete or modify any Event of Default or other similar event with
respect to one or more series of Securities at the time of establishment of
any such series as provided in Section 3.1 hereof.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of a majority in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified in the
terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a
Page 28
majority in principal amount of the Outstanding Securities of that series,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series, other
than interest deferred in accordance with the provisions of any
supplemental indenture,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in
such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
-------------------------------------------------------
The Company covenants that if
(1) default occurs in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 60 days;
(2) default occurs in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof; or
Page 29
(3) default occurs in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series;
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the
extent that payment of such interest shall be legally enforceable, interest
on any overdue principal (and premium, if any) and on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized by the Trust Indenture
Act in order to have claims of the Holders of Securities of any series and
the Trustee allowed in any such proceeding. In particular the Trustee shall
be authorized,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to, have the claims of the Trustee
(including any claim for the reasonable compensation,
Page 30
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or
Page 31
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest,
respectively.
Section 5.7 Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of a majority in principal amount of the Outstanding
Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 90 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 90-day period by the Holders of 66-2/3% in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Convert or Exchange.
------------------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date), to convert or exchange such Security in accordance with the terms of
any supplemental indenture providing for conversion or exchange, and to
institute
Page 32
suit for the enforcement of any such payment and right to convert or
exchange, and such rights shall not be impaired without the consent of such
Holder.
Section 5.9 Restoration of Rights and Remedies
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontin-
ued or abandoned for any reason, or has been determined adversely to the
Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
Section 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, nor subject the Trustee to a material risk of
personal liability, and
Page 33
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Securities of any series, or
to any suit instituted by any Holder for the enforcement of the right to
receive payment of the principal of (or premium if any) or interest on any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date) or
to convert or exchange any Security.
Page 34
Section 5.15 Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that.it may lawfully do so) that it
will not at any time insist upon or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE 6
The Trustee
Section 6.1 Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2 Notice of Defaults.
------------------
The Trustee shall give the Holders notice of any default hereunder as and
to the extent provided by the Trust Indenture Act; provided, however, that
-------- -------
in the case of any default of the character specified in Section 5.1(4), no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
Section 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
Page 35
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board
of Directors of the Company may be sufficiently evidenced by a Board
Resolution;
(c) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(e) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney; and
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The
Page 36
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.5 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar, any Conversion Agent, any Exchange Agent or any other agent of the
Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 6.8 and
6.13, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar, Conversion Agent, Exchange Agent or such other agent in writing.
Section 6.6 Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on money received by it hereunder except as
otherwise agreed with the Company.
Section 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provi-
sion of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to the
Trustee's negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest,
if any, on particular Securities.
Page 37
Section 6.8 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Indenture. Nothing
herein shall prohibit the Trustee from filing the application described in
the penultimate paragraph of Section 3.10(b) of the Trust Indenture Act as
the same is in effect on the date of this instrument, or any successor
provision or any other application seeking similar relief.
Section 6.9 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a corpora-
tion organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11
shall not have been delivered to the Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
Page 38
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(i) the Company, by a Board Resolution, may remove the Trustee with
respect to all Securities, or (ii) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee
or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.11. If, within
one year after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 6.11, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11,
any Holder who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their
Page 39
names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee; but,
on the request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Page 40
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.13 Preferential Collection of Claim Against Company.
------------------------------------------------
If and when the Trustee shall be, or shall become, a creditor, directly or
indirectly, secured or unsecured, of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of Section
3.11 of the Trust Indenture Act.
Section 6.14 Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authen-
ticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and
Page 41
surplus of not less than $50,000,000 and subject to supervision or examina-
tion by Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the require-
ments of said supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticat-
ing Agent shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to
such Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticat-
ing Agent which Authenticating Agent shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve, as their names and addresses appear in
the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate cer-
tificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Page 42
CHEMICAL BANK, as Trustee
By:_________________________________
As Authenticating Agent
By:_________________________________
Authorized Signatory
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after each Regular Record
Date (or, if there is no Regular Record Date relating to a series,
semi-annually on dates set forth in the Board Resolution, Officers'
Certificate or supplemental indenture with respect to such series), a
list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
- ---------
its capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
Page 43
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
------------------
(a) On or before May 15, 1996 and on or before May 15 in each year
thereafter, so long as any Securities are Outstanding hereunder, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act
in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any securities
exchange.
Section 7.4 Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that any such
--------
information, documents or reports required to be filed by the Company with
the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) (a) the Company shall be the surviving entity, or (b) the
surviving, resulting or transferee Person, as the case may be, shall
be a legal entity organized and existing under the laws of one of the
states of the United States of America or the District of Columbia,
shall have a consolidated net worth immediately
Page 44
subsequent to such consolidation, merger, conveyance, transfer or lease
at least equal to that of the Company immediately prior to such
consolidation, merger, conveyance, transfer or lease and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest on all the Securities and the performance and
observance of every covenant of this Indenture on the part of the
Company to be performed or observed; and
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Section 8.2 Successor Substituted.
---------------------
Upon any consolidation by the Company with or merger by the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
8.1, the successor Person formed by such consolidation, or into which the
Company is merged or to which such conveyance, transfer or lease is made,
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE 9
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes with respect to one or more series
of Securities:
Page 45
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registerable or not registerable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form, or to
permit or facilitate compliance with the procedures or requirements of
any securities exchange or market within or without the United States
of America on or in which such series may be proposed for listing or
quotation; or
(5) to provide for modifications of the DTC book-entry system or
adoption of additional or alternative systems of book-entry systems;
or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective
--------
only when there is no Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to make provisions with respect to the conversion or exchange
rights of Holders of any series of Securities; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series or to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions
arising under this Indenture, provided such action shall not adversely
--------
Page 46
affect the interests of the Holders of Securities of any series in any
material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of all series affected by the proposed
indenture or indentures supplemental hereto referred to below by Act of said
Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no
-------- -------
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or adversely
affect the right to convert or exchange any Security, or modify the
provisions of any supplemental indenture with respect to the
subordination of any Security in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture, or
(3) modify any of the provisions of this Section or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
-------- -------
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of
this proviso, in accordance with the requirements of Sections 6.11(b)
and 9.1(7).
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 the Holders of Securities of
Page 47
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities
of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any supplemen-
tal indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture
or otherwise.
Section 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and such Securities may be
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Page 48
ARTICLE 10
Covenants
Section 10.1 Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in accordance
with the terms of the Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities of
that series, if convertible or exchangeable other than as contemplated by
Section 3.5, may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of
any such other office or agency.
Section 10.3 Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its failure so to act.
Page 49
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company in the
making of any payment of principal (and premium, if any) or interest
on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect
to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for
one year after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company, on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
-------- -------
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be
Page 50
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 10.4 Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
Section 10.5 Waiver of Certain Covenants.
---------------------------
A Board Resolution or Officers' Certificate or indenture supplemental
hereto which establishes the terms of a series of Securities may provide that
specified terms, provisions and conditions are subject to this Section. In
such event the Company may omit in any particular instance to comply with any
such term, provision or condition with respect to the Securities of such
series if before the time for such compliance the Holders of at least 66 2/3%
in principal amount of the Outstanding Securities of such series shall, by
Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition. No such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and effect.
Section 10.6 Certificate to Trustee.
----------------------
So long as the same shall be required by the Trust Indenture Act, the
Company will deliver to the Trustee, within 120 days of the end of each
fiscal year (or such other time or times as may be required by the Trust
Indenture Act as then in effect) a certificate signed by its principal
executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture (such compliance to be
determined without regard to any period of grace or requirement of notice
provided in this Indenture) or in such other form and with such other
signatories as may be required by the Trust Indenture Act as then in effect.
Page 51
ARTICLE 11
Redemption of Securities
Section 11.1 Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In the case of any redemption at the election of the
Company of all the Securities of any series, the Company shall, at least 35
days prior to the Redemption Date fixed by the Company (unless a shorter
period shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least
40 days prior to the Redemption Date fixed by the Company (unless a shorter
period shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of securities prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction. The Company may rescind its election to redeem Securities by
notice to the Trustee at any time on or before 20 days prior to the
Redemption Date (unless a shorter period shall be satisfactory to the
Trustee). To the extent the foregoing rescission provisions and the
rescission provisions of Section 11.4 are inconsistent with applicable book-
entry procedures of DTC, or any other record owner of registered global
securities, such rescission provisions shall be modified to the extent
necessary to permit coordination or conformity with such procedures, but the
minimum time limitations of the rescission provisions shall not be reduced.
Section 11.3 Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of like tenor of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 35 days prior to the Redemption Date (unless a shorter period shall be
satisfactory to the Trustee and the Company) by the Trustee, from the
Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of such Securities of a denomina-
tion larger than the minimum authorized denomination for such Securities.
Page 52
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to
be redeemed.
Section 11.4 Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) if such Securities are convertible or exchangeable other than
pursuant to Section 3.5, the conversion price and the last date on
which such Securities may be converted or exchanged,
(7) that the redemption is for a sinking fund, if such is the case,
and
(8) if the Company intends to retain its right to rescind the
redemption, the last date by which notice of rescission of a redemption
of Securities may be given.
Notice of redemption of Securities to be redeemed at the election of the
Company, and any notice of the rescission of any such redemption, shall be
given by the Company or,
Page 53
at the Company's request, by the Trustee in the name and at the expense of
the Company. Any notice of rescission of any redemption shall be given on
or before 15 days prior to the applicable Redemption Date.
Section 11.5 Deposit of Redemption Price.
---------------------------
On or before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in section 10.3) an
amount of money sufficient to pay on the Redemption Date the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that
date.
Section 11.6 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid (and not rescinded
within the time limitations referred to above), the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments
-------- --------
of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor
in the Security.
Section 11.7 Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of an authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
Page 54
ARTICLE 12
Sinking Funds
Section 12.1 Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for
by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of securities of any series as provided for by the
terms of Securities of such series.
Section 12.2 Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
--------
credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 12.3 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof,
if any, which is to be satisfied by delivering and crediting Securities of
that series pursuant to Section 12.2 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in
Section 11.3 and cause notice of the redemption thereof to be given in
Page 55
the name of and at the expense of the Company in the manner provided in
Section 11.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.6 and 11.7.
ARTICLE 13
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
---------------------------------
If pursuant to Section 3.1 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 13.2 or (b) covenant
defeasance of the Securities of a series under Section 13.3, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article Thirteen, shall be applicable to the
Securities of such series, and the Company may at its option by or pursuant
to a Board Resolution, at any time, with respect to the Securities of such
series, elect to have either Section 13.2 (if applicable) or Section 13.3 (if
applicable) be applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below in this Article Thirteen.
Section 13.2 Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this Section,
the Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For
this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of Outstanding Securities of such series to receive, solely
from the trust fund described in Section 13.4 and as more fully set forth in
such Section, payments in respect of the principal of (and premium, if any)
and interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6,
10.2 and 10.3, (C) the rights, powers, trusts, duties, and immunities of the
Trustee under Sections 3.5, 3.6, 3.7, 3.9, 4.2, 6.7 and the last paragraph
of Section 10.3, and otherwise the duty of the Trustee to authenticate
Securities of such series issued on registration of transfer or exchange and
(D) this Article Thirteen. Subject to compliance with this Article Thirteen,
the Company may exercise its option under this Section 13.2 notwithstanding
the prior exercise of its option under Section 13.3 with respect to the
Securities of such series.
Page 56
Section 13.3 Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to this Section
with respect to the Securities of any series, the Company shall be released
from its obligations under any covenant specified in the Board Resolution,
Officers' Certificate or supplemental indenture establishing the terms,
conditions and limitations with respect to the Outstanding Securities of such
series as being subject to release pursuant to this Section 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 such series, the Company may omit
to comply with and shall have no liability in respect of any term, condition
or limitation set forth in any such covenant, and such covenant shall no
longer be applicable to the Company, whether directly or indirectly by reason
of any reference elsewhere herein to any such Section or by reason of any
reference in any such document to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities of any other
series shall be unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section 13.2
or Section 13.3 to the Outstanding Securities of such series:
(a) the Company shall irrevocably have 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 such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) 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 and
discharge, and which shall be applied by the Trustee to pay and dis
charge, (i) the principal of (and premium, if any, on) and each
installment of principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
of such Securities. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United States
of America for the payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
Page 57
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as
--------
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(b) (i) 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 of such series shall have occurred and be continuing on the
date of such deposit, and (ii) with respect to a defeasance and
discharge under Section 13.2, no such Event of Default or event shall
have occurred and be continuing under subsection 501(5) or (6) hereof
at any time during the period ending on the 91st day after the date of
such deposit or, if longer, ending on the day following the expiration
of the longest preference period applicable to the Company in respect
of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period); provided that
--------
in connection with a defeasance under Section 13.2 the Company will be
released from any covenants specified as being subject to this Article
13 in a Board Resolution or Officers' Certificate or indenture
supplemental hereto which establishes the term of a series of
Securities, immediately upon the making of the deposit under subsection
(a) without reference to the additional period of time referred to in
this subsection (ii); and provided, further, however, that if (x) a
-------- -------
bank with an investment rating of at least A by each of Standard &
Poor's Corporation and Moody's Investors Service, Inc. shall issue in
favor of the Trustee, for the benefit of the Holders of the Outstanding
Securities to be defeased hereunder, an unsecured letter of credit to
guarantee the deposit referred to in subparagraph (a) above and (y) the
Company shall provide to the Trustee an Opinion of Counsel (which shall
be nationally recognized counsel experienced in bankruptcy matters)
satisfactory to the Trustee to the effect that no payments pursuant to
the letter of credit to be made for the benefit of the Holders of the
Outstanding Securities to be defeased hereunder would be subject to
recapture, as a preference or otherwise, by any trustee in bankruptcy
of the Company, then this condition shall be satisfied without regard
to the period of time referred to in subsection (ii) above.
(c) Such defeasance or covenant defeasance shall not (i) cause the
Trustee for the Securities of such series to have a conflicting
interest as defined in Section 6.8 and for purposes of the Trust
Indenture Act with respect to any securities of the Company or (ii)
result in a trust arising from such deposit which constitutes an
investment company under the Investment Company Act of 1940, as amended
(the
Page 58
"40 Act"), unless it is registered as such or exempt from
registration under the 40 Act.
(d) Such defeasance or 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 Company is a party
or by which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(f) In the case of an election under Section 13.2, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such 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 defeasance had not occurred.
(g) In the case of an election under Section 13.3, the Company shall
have delivered to the Trustee an opinion of Counsel to the effect that
the Holders of the Outstanding Securities of such series 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.
(h) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to
Section 3.1.
(i) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent provided for relating to either the defeasance under Section
13.2 or the covenant defeasance under Section 13.3 (as the case may be)
have been complied with.
Section 13.5 Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions.
------------------------------------------------
Page 59
Subject to the provisions of the last paragraph of Section 10.3, all money
and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee pursuant to Section 13.4 in respect of the Outstanding
Securities of such series shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the
Company acting as its own paying agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest, but such money need
not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 13.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
Section 13.6 Reinstatement.
------------
If the Trustee or Paying Agent is unable to apply any money or securities
in accordance with Section 13.5 of this Indenture, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the Company's obligations under this Indenture and the Securities of the
applicable series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 13.4 of this Indenture until such time as the
Trustee or Paying Agent is permitted to apply all such money or securities
in accordance with Section 13.5 of this Indenture; provided that, if the
--------
Company has made any payment of principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or securities held by the Trustee or Paying Agent.
Page 60
ARTICLE 14
Immunity of Incorporators, Shareholders,
Officers and Directors
Section 14.1 Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse under or upon any obligation, covenant or agreement of this
Indenture, any supplemental indenture or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or of any successor Person either directly or through
the Company, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
shareholders, officers or directors, as such, of the Company or of any
successor Person, or any of them, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or implied
therefrom; and that any and all such personal liability, either at common law
or in equity or by constitution or statute, of, and any and all such rights
and claims against, every such incorporator, shareholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counter-
parts shall together constitute but one and the same instrument.
Page 61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed,
all as of the day and year first above written.
CITIZENS UTILITIES COMPANY
By:__________________________________
Title: Vice President, Treasurer and
Chief Financial Officer
Attest:
__________________________
Assistant Secretary
CHEMICAL BANK, as Trustee
By:_________________________________
Title: Vice President
Attest:
__________________________
Vice President
County of Fairfield )
) ss.:
State of Connecticut )
On the ____ day of ______, 1995, before me personally came [Robert J.
DeSantis], to me known, who, being by me duly sworn, did depose and say that
he is [Vice President and Treasurer] of CITIZENS UTILITIES COMPANY, one of
the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto
by like authority.
______________________________________
County of New York )
) ss.:
State of New York )
On this ____ day of ___________ in the year of 1995 before me personally
came [Thomas Foley], to me personally known, who being by me duly sworn did
depose and say that he is [Vice President] of CHEMICAL BANK, one of the
corporations described in and which executed the foregoing Indenture; that
he knows the seal of said corporation; that the seal affixed to said
instrument opposite the execution thereof on behalf of said corporation is
the corporate seal of said corporation; that said instrument was signed and
said corporate seal was so affixed on behalf of said corporation by authority
and order of its Board of Directors; that he signed his name thereto by like
authority; and he acknowledged said instrument to be his free act and deed
and the free act and deed of said Chemical Bank.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal, at New York in said State of New York, the day and year first above
written.
____________________________________