EXECUTION COPY
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CITIZENS UTILITIES COMPANY,
To
CHEMICAL BANK,
Trustee
----------------
INDENTURE
Dated as of January 15, 1996
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==============================
CITIZENS UTILITIES COMPANY
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture,
dated as of January 15, 1996.
Trust Indenture
Act Section Indenture Section
--------------- -----------------
subsection 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
subsection 311(a) 6.13
(b) 6.13
312(a) 7.1,7.2(a)
(b) 7.2(b)
(c) 7.2(c)
subsection 313(a) 7.3(a)
(b) 7.3(a)
(c) 7.3(a)
(d) 7.3(b)
subsection 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
subsecton 315(a) 6.1
(b) 2.7
(c) 6.1
(d) 6.1
(d)(1) 6.1
(e) 5.14
316(a) 5.2, 5.12, 5.13
(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)
subsection 317(a)(1) 5.3
(a)(2) 5.4
(b) 10.3
subsection 318(a) 2.1
NOTE: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
INDENTURE, dated as of January 15, 1996, 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
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
(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 and Co. and/or DTC.
"Business Day" means any day other than a Saturday or Sunday or 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.
"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 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:
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(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;
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.
"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".
"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 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 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.
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 2.1 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.
--------------
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
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.
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;
(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 Securities 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;
(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.
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
(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, reorga nization 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 transferred 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, 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.
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 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 governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new 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 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 15 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,
which shall be established so as to permit adequate time for the time periods
noted below, 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 15 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 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.
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 in the form of one or more fully registered global securities in the
principal amount of each separate series of the Securities. Upon issuance, 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 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 registered or 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.
(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
(ii) will become due and payable at their Stated Maturity 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, 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. Subject to Section 3.7, 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.
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.
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 specifically
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
(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 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
(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, 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 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 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 discontinued
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
(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.
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 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 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 provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to 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.
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 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
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:
(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 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.
(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 authenticated 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 surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee 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 Authenticating
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
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
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.
(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 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:
(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, registrable or not registrable 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 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 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
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying 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.
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, 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.
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 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.
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 denomination larger than the
minimum authorized denomination for such Securities.
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, 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 11.4 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.
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 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, (D) this Article Thirteen and
(E) any other Section of this Indenture contemplated by Section 3.1 to survive.
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.
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 discharge, (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 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 "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.
-------------------------------------------------
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 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.
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 counterparts
shall together constitute but one and the same instrument.
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 and Treasurer
Attest:
- --------------------------
Secretary
CHEMICAL BANK, as Trustee
By:_________________________________ Title: Vice President
Attest:
- ------------------------
Assistant Vice President
County of Fairfield) )
) ss.:
State of Connecticut)
On the 15th day of January, 1996, 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 15th day of January in the year of 1996 before me personally came
__________________, 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.
------------------------------------
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
Authenication 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
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 26
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 29
Section 5.5 Trustee May Enforce Claims
Without Possession of Securities 30
Section 5.6 Application of Money Collected 30
Section 5.7 Limitation on Suits 31
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and
Interest and to Convert or Exchange 31
Section 5.9 Restoration of Rights and Remedies 32
Section 5.10 Rights and Remedies Cumulative 32
Section 5.11 Delay or Omission Not Waiver 32
Section 5.12 Control by Holders 32
Section 5.13 Waiver of Past Defaults 33
Section 5.14 Undertaking for Costs 33
Section 5.15 Waiver of Stay or Extension Laws 33
ARTICLE 6
The Trustee
Section 6.1 Certain Duties and Responsibilities 34
Section 6.2 Notice of Defaults 34
Section 6.3 Certain Rights of Trustee 34
Section 6.4 Not Responsible for Recitals or
Issuance of Securities 35
Section 6.5 May Hold Securities 35
Section 6.6 Money Held in Trust 36
Section 6.7 Compensation and Reimbursement 36
Section 6.8 Disqualification; Conflicting Interests 36
Section 6.9 Corporate Trustee Required; Eligibility 37
Section 6.10 Resignation and Removal; Appointment
of Successor 37
Section 6.11 Acceptance of Appointment by Successor 38
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business 39
Section 6.13 Preferential Collection of Claim
Against Company 40
Section 6.14 Appointment of Authenticating Agent 40
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and
Addresses of Holders 41
Section 7.2 Preservation of Information;
Communications to Holders 42
Section 7.3 Reports by Trustee 42
Section 7.4 Reports by Company 42
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc.,
Only on Certain Terms 43
Section 8.2 Successor Substituted 44
ARTICLE 9
Supplemental Indentures
Section 9.1 Supplemental Indentures Without
Consent of Holders 44
Section 9.2 Supplemental Indentures with
Consent of Holders 45
Section 9.3 Execution of Supplemental Indentures 46
Section 9.4 Effect of Supplemental Indentures 46
Section 9.5 Conformity with Trust Indenture Act 47
Section 9.6 Reference in Securities to Supplemental
Indentures 47
ARTICLE 10
Covenants
Section 10.1 Payment of Principal, Premium and Interest 47
Section 10.2 Maintenance of Office or Agency 47
Section 10.3 Money for Securities Payments
to Be Held in Trust 48
Section 10.4 Corporate Existence 49
Section 10.5 Waiver of Certain Covenants 49
Section 10.6 Certificate to Trustee 50
ARTICLE 11
Redemption of Securities
Section 11.1 Applicability of Article 50
Section 11.2 Election to Redeem; Notice to Trustee 50
Section 11.3 Selection by Trustee of Securities
to Be Redeemed 51
Section 11.4 Notice of Redemption 51
Section 11.5 Deposit of Redemption Price 52
Section 11.6 Securities Payable on Redemption Date 52
Section 11.7 Securities Redeemed in Part 53
ARTICLE 12
Sinking Funds
Section 12.1 Applicability of Article 53
Section 12.2 Satisfaction of Sinking Fund Payments
with Securities 53
Section 12.3 Redemption of Securities for Sinking Fund 54
ARTICLE 13
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article;
Company's Option to Effect Defeasance
or Covenant Defeasance 54
Section 13.2 Defeasance and Discharge 54
Section 13.3 Covenant Defeasance 55
Section 13.4 Conditions to Defeasance or Covenant
Defeasance 55
Section 13.5 Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous
Provisions 58
Section 13.6 Reinstatement 58
ARTICLE 14
Immunity of Incorporators, Shareholders,
Officers and Directors
Section 14.1 Indenture and Securities Solely Corporate
Obligations 59