Exhibit 4-C-13
PENNSYLVANIA ELECTRIC COMPANY
AND
UNITED STATES TRUST COMPANY OF NEW YORK
TRUSTEE
-----------------
INDENTURE
DATED AS OF APRIL 1, 1999
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CROSS REFERENCE SHEET SHOWING THE LOCATION IN THE INDENTURE
OF THE PROVISIONS INSERTED PURSUANT TO SECTIONS 310
THROUGH 318(a),INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939
Trust Indenture Act Indenture
Section Section
310 (a) (1).............................................................7.08
(a) (2)..............................................................7.07
(a) (3)....................................................Not Applicable
(a) (4)....................................................Not Applicable
(a) (5) .............................................................7.08
(b)..................................................................7.07
(c)........................................................Not Applicable
311 (a)................................................................ 7.13
(b)..................................................................7.13
(c)........................................................Not Applicable
312 (a).....................................................6.01 and 6.02(a)
(b)...............................................................6.02(b)
(c)...............................................................6.02(c)
313 (a)..............................................................6.04(a)
(b). .............................................................6.04(b)
(c). .............................................................6.04(d)
(d)...............................................................6.04(c)
314 (a)........................................................6.03 and 5.05
(c) (1)....................................................1.03 and 13.05
(c) (2)....................................................1.03 and 13.05
(c) (3)....................................................Not Applicable
(d)..................................................................1.03
(e)...............................................................13.05(b)
(f)........................................................Not Applicable
315 (a).................................................................7.01
(c)...............................................................7.01(a)
(d)...............................................................7.01(b)
(e)..................................................................7.09
316 (a) .......................................................7.07 and 8.04
(b).....................................................7.04(b) and 11.02
(c)..................................................................8.06
317 (a)(1) ..........................................................7.02(b)
(a) (2)...........................................................7.02(c)
(b).........................................................4.02 and 5.04
318 (a)................................................................13.07
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NOTE: This cross-reference sheet shall not, for any purpose, be deemed
to be a part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 General ...............................................1
Section 1.02 Trust Indenture Act....................................1
Section 1.03 Definitions............................................2
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 Form Generally. .......................................9
Section 2.02 Form Of Trustee's Certificate Of Authentication.......10
Section 2.03 Amount Unlimited......................................10
Section 2.04 Denominations, Dates, Interest Payment
And Record Dates .....................................10
Section 2.05 Execution, Authentication, Delivery And Dating........11
Section 2.06 Exchange And Registration Of Transfer Of Notes........15
Section 2.07 Mutilated, Destroyed, Lost Or Stolen Notes............16
Section 2.08 Temporary Notes.......................................17
Section 2.09 Cancellation Of Notes Paid, Etc.......................17
Section 2.10 Interest Rights Preserved.............................17
Section 2.11 Special Record Date...................................18
Section 2.12 Payment Of Notes......................................18
Section 2.13 Notes Issuable In The Form Of A Global Note...........19
ARTICLE III
REDEMPTION OF NOTES
Section 3.01 Applicability Of Article..............................22
Section 3.02 Notice Of Redemption; Selection Of Notes..............22
Section 3.03 Payment Of Notes On Redemption; Deposit Of
Redemption Price......................................23
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ARTICLE IV
SATISFACTION AND DISCHARGE;
UNCLAIMED MONEYS
Section 4.01 Satisfaction And Discharge............................25
Section 4.02 Deposited Moneys To Be Held In Trust By Trustee.......27
Section 4.03 Paying Agent To Repay Moneys Held.....................27
Section 4.04 Return Of Unclaimed Moneys............................28
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01 Payment Of Principal And Interest.....................28
Section 5.02 Offices For Payments, Etc.............................28
Section 5.03 Appointment To Fill A Vacancy In Office
Of Trustee............................................29
Section 5.04 Provision As To Paying Agent..........................29
Section 5.05 Certificates And Notice To Trustee....................30
Section 5.06 Restrictions On Liens.................................30
Section 5.07 Restrictions On Sale And Lease-Back
Transactions..........................................33
Section 5.08 Corporate Existence...................................33
Section 5.09 Issuance of Additional First Mortgage Bonds...........34
ARTICLE VI
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 6.01 Company To Furnish Noteholder Lists...................34
Section 6.02 Preservation and Disclosure of Noteholder Lists.......34
Section 6.03 Reports By The Company................................36
Section 6.04 Reports By The Trustee................................36
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ARTICLE VII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 7.01 Events Of Default.....................................37
Section 7.02 Collection Of Indebtedness By Trustee;
Trustee May Prove Debt................................40
Section 7.03 Application Of Proceeds...............................42
Section 7.04 Limitations On Suits By Noteholders...................43
Section 7.05 Suits For Enforcement.................................43
Section 7.06 Powers And Remedies Cumulative; Delay Or
Omission Not Waiver Of Default........................44
Section 7.07 Direction of Proceedings and Waiver of
Defaults By Majority of Noteholders...................44
Section 7.08 Notice of Default.....................................45
Section 7.09 Undertaking To Pay Costs..............................45
Section 7.10 Restoration of Rights on Abandonment of
Proceedings...........................................46
Section 7.11 Waiver of Usury, Stay or Extension Laws...............46
ARTICLE XIII
CONCERNING THE TRUSTEE
Section 8.01 Duties and Responsibilities of Trustee................46
Section 8.02 Reliance on Documents, Opinions, Etc..................47
Section 8.03 No Responsibility For Recitals, Etc...................49
Section 8.04 Trustee, Authenticating Agent, Paying
Agent Or Registrar May Own Notes......................49
Section 8.05 Moneys To Be Held In Trust............................49
Section 8.06 Compensation And Expenses Of Trustee..................49
Section 8.07 Officers' Certificate As Evidence.....................50
Section 8.08 Conflicting Interest Of Trustee.......................50
Section 8.09 Existence And Eligibility Of Trustee..................50
Section 8.10 Resignation Or Removal Of Trustee.....................51
Section 8.11 Appointment Of Successor Trustee......................52
Section 8.12 Acceptance By Successor Trustee.......................52
Section 8.13 Succession By Merger, Etc.............................53
Section 8.14 Limitations On Rights Of Trustee As A Creditor........54
Section 8.15 Authenticating Agent..................................54
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ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.01 Action By Noteholders.................................55
Section 9.02 Proof Of Execution By Noteholders.....................55
Section 9.03 Persons Deemed Absolute Owners. ......................55
Section 9.04 Company-Owned Notes Disregarded.......................56
Section 9.05 Revocation Of Consents; Future Holders Bound. ........56
Section 9.06 Record Date For Noteholder Acts.......................56
ARTICLE X
NOTEHOLDERS' MEETING
Section 10.01 Purposes Of Meetings..................................57
Section 10.02 Call Of Meetings By Trustee...........................57
Section 10.03 Call Of Meetings By Company Or Noteholders............58
Section 10.04 Qualifications For Voting.. ..........................58
Section 10.05 Regulations...........................................58
Section 10.06 Voting. ..............................................59
Section 10.07 Rights Of Trustee Or Noteholders Not Delayed..........59
ARTICLE XI
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 11.01 Company May Consolidate, Etc. Only
On Certain Terms......................................60
Section 11.02 Successor Corporation Substituted.....................60
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 12.01 Supplemental Indentures Without
Consent Of Noteholders................................61
Section 12.02 Supplemental Indentures With Consent
Of Noteholders........................................62
Section 12.03 Compliance With Trust Indenture Act;
Effect Of Supplemental Indentures.....................64
Section 12.04 Notation On Notes.....................................64
Section 12.05 Evidence Of Compliance Of Supplemental
Indenture To Be Furnished Trustee.....................64
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ARTICLE XIII
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01 Indenture And Notes Solely Corporate
Obligations...........................................64
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.01 Provisions Binding On Company's Successors............65
Section 14.02 Official Acts By Successor Corporation................65
Section 14.03 Notices...............................................65
Section 14.04 Governing Law.........................................65
Section 14.05 Evidence Of Compliance With Conditions
Precedent.............................................65
Section 14.06 Business Days.........................................67
Section 14.07 Trust Indenture Act To Control........................67
Section 14.08 Table Of Contents, Headings, Etc......................67
Section 14.09 Execution In Counterparts.............................67
Section 14.10 Manner Of Mailing Notice To Noteholders...............68
Section 14.11 Approval By Trustee Of Expert Or Counsel..............68
EXHIBIT A - Form of Global Note.................................A-1
EXHIBIT B - Form of Note........................................B-1
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THIS INDENTURE, dated as of April 1, 1999, between PENNSYLVANIA
ELECTRIC COMPANY, a corporation duly organized and existing under the laws of
the Commonwealth of Pennsylvania (the "COMPANY"), and UNITED STATES TRUST
COMPANY OF NEW YORK, as trustee (the "TRUSTEE").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its Notes (as hereinafter defined), to be issued
as in this Indenture provided;
AND WHEREAS, all acts and things necessary to make this Indenture a
valid agreement according to its terms have been done and performed, and the
execution of this Indenture and the issue hereunder of the initial series of
Notes have in all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be authenticated, issued and delivered, and in consideration of
the premises, of the purchase and acceptance of the Notes by the Holders thereof
and of the sum of one dollar duly paid to it by the Trustee at the execution of
this Indenture, the receipt whereof is hereby acknowledged, the Company,
intending to be legally bound hereby, covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective Holders from time to time
of the Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. The terms defined in this Article I (whether or
not capitalized and except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Article I.
Section 1.02 Trust Indenture Act. (a) Whenever this Indenture refers to
a provision of the Trust Indenture Act of 1939 (the "TIA"), such provision is
incorporated by reference in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this
Indenture that are defined by the TIA, defined by the TIA by reference to
another statute or defined by a rule of the Commission under the TIA shall have
the meanings assigned to them in the TIA or such statute or rule as in force on
the date of execution of this Indenture.
Section 1.03 Definitions. For purposes of this Indenture, the following
terms shall have the following meanings.
"Authenticating Agent" shall mean any agent of the Trustee which shall
be appointed and acting pursuant to Section 8.15 hereof.
"Authorized Agent" shall mean any agent of the Company designated as
such by an Officers' Certificate delivered to the Trustee.
"Board Of Directors" shall mean the Board of Directors of the Company
or the Executive Committee of such Board or any other duly authorized committee
of such Board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or any duly authorized committee thereof and to be in
full force and effect on the date of such certification.
"Business Day" shall mean each day that is not a day on which banking
institutions or trust companies in the Borough of Manhattan, the City and State
of New York, or in the city where the corporate trust office of the Trustee is
located, are obligated or authorized by law or executive order to close.
"Capital Lease" shall mean any lease which has been or would be
capitalized on the books of the lessee in accordance with GAAP.
"Capitalization" shall mean the total of all the following items
appearing on, or included in, the consolidated balance sheet of the Company: (i)
liabilities for indebtedness maturing more than twelve (12) months from the date
of determination; and (ii) common stock, preferred stock, Hybrid Preferred
Securities, premium on capital stock, capital surplus, capital in excess of par
value, and retained earnings (however the foregoing may be designated), less, to
the extent not otherwise deducted, the cost of shares of capital stock of the
Company held in its treasury. Subject to the foregoing, Capitalization shall be
determined in accordance with GAAP and practices applicable to the type of
business in which the Company is engaged and that are approved by
2
independent accountants regularly retained by the Company, and may be determined
as of a date not more than sixty (60) days prior to the happening of an event
for which such determination is being made.
"Commission" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body performing
such duties.
"Company" shall mean the corporation named as the "Company" in the
first paragraph of this Indenture, and its successors and assigns permitted
hereunder.
"Company Order" shall mean a written order signed in the name of the
Company by one of the Chairman, the President, any Vice President (whether or
not designated by a number or numbers or a word or words added before or after
the title "Vice President"), the Treasurer or an Assistant Treasurer, of the
Company, and delivered to the Trustee. At the Company's option, a Company Order
may take the form of a supplemental indenture to this Indenture.
"Consolidated Subsidiary" shall mean any Subsidiary whose accounts are
or are required to be consolidated with the accounts of the Company in
accordance with GAAP.
"Corporate Trust Office of The Trustee", or other similar term, shall
mean the corporate trust office of the Trustee, at which at any particular time
its corporate trust business shall be principally administered, which office is
at the date of the execution of this Indenture located at 114 West 47th Street,
25th Floor, New York, New York, 10036-1532.
"Debt" shall mean any outstanding debt for money borrowed evidenced by
notes, debentures, bonds, or other securities, or guarantees of any thereof.
"Depositary" shall mean, unless otherwise specified in a Company Order
pursuant to Section 2.05 hereof, The Depository Trust Company, New York, New
York, or any successor thereto registered and qualified as a clearing agency
under the Securities Exchange Act of 1934, or other applicable statute or
regulation.
"Event Of Default" shall mean any event specified in Section 7.01
hereof, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
3
"Expert" shall mean any officer of the Company familiar with the terms
of this Indenture, any law firm, any investment banking firm, or any other
Person, satisfactory in the reasonable judgment of the Trustee.
"First Mortgage" shall mean the Mortgage and Deed of Trust, dated as of
January 1, 1942, from the Company to United States Trust Company of New York, as
successor trustee, as supplemented and amended from time to time.
"First Mortgage Bonds" shall mean all first mortgage bonds issued by
the Company and outstanding under the First Mortgage.
"GAAP" shall mean generally accepted accounting principles in the
United States of America, applied on a basis consistent with those used in the
preparation of any financial statements referred to herein, unless otherwise
stated herein.
"Global Note" shall mean a Note that, pursuant to Section 2.05 hereof,
is issued to evidence Notes, that is delivered to the Depositary or pursuant to
the instructions of the Depositary and that shall be registered in the name of
the Depositary or its nominee.
"Hybrid Preferred Securities" shall mean any preferred securities
issued by a Hybrid Preferred Securities Subsidiary, where such preferred
securities have the following characteristics:
(i) such Hybrid Preferred Securities Subsidiary lends
substantially all of the proceeds from the issuance of such preferred securities
to the Company, or a wholly owned subsidiary of the Company, in exchange for
Subordinated Indebtedness issued by the Company;
(ii) such preferred securities contain terms providing for the
deferral of interest payments corresponding to provisions providing for the
deferral of interest payments on the related Subordinated Indebtedness; and
(iii) the Company makes periodic interest payments on the
related Subordinated Indebtedness, which interest payments are in turn used by
the Hybrid Preferred Securities Subsidiary to make corresponding payments to the
holders of the preferred securities.
"Hybrid Preferred Securities Subsidiary" shall mean any limited
partnership or business trust (or similar entity) (i) all of the general
partnership or common equity interest of which is owned (either directly or
indirectly through one or more wholly-
4
owned Subsidiaries of the Company or any Consolidated Subsidiary of the Company)
at all times by the Company, (ii) that has been formed for the purpose of
issuing Hybrid Preferred Securities and (iii) substantially all of the assets of
which consist at all times solely of Subordinated Indebtedness issued by the
Company and payments made from time to time on such Subordinated Indebtedness.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date" shall mean (a) each date designated as such for
the payment of interest on a Note specified in a Company Order pursuant to
Section 2.05 hereof (provided that the first Interest Payment Date for any Note,
the Original Issue Date of which is after a Regular Record Date but prior to the
respective Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date), (b) a date of maturity of such Note
and (c) only with respect to defaulted interest on such Note, the date
established by the Trustee for the payment of such defaulted interest pursuant
to Section 2.11 hereof.
"Lien" shall mean any mortgage, security interest, pledge or lien.
"Maturity," when used with respect to any Note, shall mean the date on
which the principal of such Note (together with all accumulated and accrued
interest) becomes due and payable as therein or herein provided, whether at the
stated maturity thereof or by declaration of acceleration, redemption or
otherwise.
"Mortgage Trustee" shall mean the Person serving as trustee at the time
under the First Mortgage.
"Note" or "Notes" shall mean any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"Noteholder", "Holder of Notes" or "Holder" shall mean any Person in
whose name at the time a particular Note is registered on the books of the
Trustee kept for that purpose in accordance with the terms hereof.
"Officers' Certificate" when used with respect to the Company, shall
mean a certificate signed by one of the Chairman, the President, any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the
5
title "Vice President"), and by one of the Chief Financial Officer, Treasurer,
any Assistant Treasurer, the Secretary or an Assistant Secretary of the Company;
provided, that no individual shall be entitled to sign in more than one
capacity.
"Operating Property" shall mean (i) any interest in real property owned
by the Company and (ii) any asset owned by the Company that is depreciable in
accordance with GAAP, excluding, in either case, any interest of the Company as
lessee under a Capital Lease (except for a lease that results from a Sale and
Lease-Back Transaction).
"Opinion Of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 14.05 hereof. If the Indenture requires the delivery of
an Opinion of Counsel to the Trustee, the text and substance of which has been
previously delivered to the Trustee, the Company may satisfy such requirement by
the delivery by the legal counsel that delivered such previous Opinion of
Counsel of a letter to the Trustee to the effect that the Trustee may rely on
such previous Opinion of Counsel as if such Opinion of Counsel was dated and
delivered the date delivery of such Opinion of Counsel is required. Any Opinion
of Counsel may contain reasonable conditions and qualifications satisfactory to
the Trustee.
"Original Issue Date" shall mean for a Note, or portion thereof, the
date upon which it, or such portion, was issued by the Company pursuant to this
Indenture and authenticated by the Trustee (other than in connection with a
transfer, exchange or substitution).
"Outstanding", when used with reference to Notes, shall, subject to
Section 9.04 hereof, mean, as of any particular time, all Notes authenticated
and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company), provided that if
such Notes are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided in Article III, or provisions
satisfactory to the Trustee shall have been made for giving such notice;
6
(c) Notes, or portions thereof, that have been paid and
discharged or are deemed to have been paid and discharged pursuant to the
provisions of this Indenture; and
(d) Notes in lieu of or in substitution for which other Notes
shall have been authenticated and delivered, or which have been paid, pursuant
to Section 2.07 hereof.
"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political subdivision
thereof.
"Principal Executive Offices Of The Company" shall mean 2800 Pottsville
Pike, Reading, Pennsylvania 19605, or such other place where the main corporate
offices of the Company are located as designated in writing to the Trustee by an
Authorized Agent.
"Regular Record Date" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.05, for an Interest Payment Date for a
particular Note (a) the fifteenth day of the calendar month next preceding each
Interest Payment Date (unless the Interest Payment Date is the date of maturity
of such Note, in which event, the Regular Record Date shall be as described in
clause (b) hereof) and (b) the date of maturity of such Note.
"Responsible Officer" or "Responsible Officers" when used with respect
to the Trustee shall mean one or more of the following: the chairman of the
board of directors, the vice chairman of the board of directors, the chairman of
the executive committee, the president, any vice president (whether or not
designated by a number or a word or words added before or after the title "Vice
President"), the secretary, the treasurer, any trust officer, any assistant
trust officer, any second or assistant vice president, any assistant secretary,
any assistant treasurer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Sale and Lease-Back Transaction" shall mean any arrangement with any
Person providing for the leasing to the Company of any Operating Property
(except for leases for a term, including any renewal thereof, of not more than
forty-eight (48) months), which Operating Property has been or is to be sold or
transferred by the Company to such Person; provided, however, Sale and Lease-
7
Back Transaction shall not include any arrangement first entered into prior to
the date of this Indenture.
"Special Record Date" shall mean, with respect to any Note, the date
established by the Trustee in connection with the payment of defaulted interest
on such Note pursuant to Section 2.11 hereof.
"Stated Maturity" shall mean with respect to any Note, the last date on
which principal on such Note becomes due and payable as therein or herein
provided, other than by declaration of acceleration or by redemption.
"Subordinated Indebtedness" shall mean any unsecured Debt of the
Company (i) issued in exchange for the proceeds of Hybrid Preferred Securities
and (ii) subordinated to the rights of the Holders hereunder.
"Subsidiary" shall mean, as to any Person, any corporation or other
entity of which at least a majority of the securities or other ownership
interest having ordinary voting power (absolutely or contingently) for the
election of directors or other Persons performing similar functions are at the
time owned directly or indirectly by such Person.
"Tangible Assets" shall mean the amount shown as total assets on the
consolidated balance sheet of the Company, less the following: (i) intangible
assets including, but without limitation, such items as goodwill, trademarks,
trade names, patents, and unamortized debt discount and expense and (ii)
appropriate adjustments, if any, on account of minority interests. Tangible
Assets shall be determined in accordance with GAAP and practices applicable to
the type of business in which the Company is engaged and that are approved by
the independent accountants regularly retained by the Company, and may be
determined as of a date not more than sixty (60) days prior to the happening of
the event for which such determination is being made.
"Trustee" shall mean United States Trust Company of New York and,
subject to Article VIII, shall also include any successor Trustee.
"U.S. Government Obligations" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment of
principal and interest by, the United States of America or obligations of a
person controlled or supervised by and acting as an agency or instrumentality
thereof for the payment of which obligations or guarantee the full faith and
credit of the United States is pledged, or (ii) certificates
8
or receipts representing direct ownership interests in obligations or specified
portions (such as principal or interest) of obligations described in clause (i)
above, which obligations are held by a custodian in safekeeping in a manner
satisfactory to the Trustee.
"Value" shall mean, with respect to a Sale and Lease-Back Transaction,
as of any particular time, the amount equal to the greater of (i) the net
proceeds to the Company from the sale or transfer of the property leased
pursuant to such Sale and Lease-Back Transaction or (ii) the net book value of
such property, as determined in accordance with GAAP by the Company, in either
case multiplied by a fraction, the numerator of which shall be equal to the
number of full years of the term of the lease that is part of such Sale and
Lease-Back Transaction remaining at the time of determination and the
denominator of which shall be equal to the number of full years of such term,
without regard, in any case, to any renewal or extension options contained in
such lease.
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 Form Generally.
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(a) If the Notes are in the form of a Global Note they shall be in
substantially the form set forth in Exhibit A to this Indenture, and, if the
Notes are not in the form of a Global Note, they shall be in substantially the
form set forth in Exhibit B to this Indenture, or, in any case, in such other
form as shall be established by a Board Resolution, or a Company Order pursuant
to a Board Resolution, or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, or any indentures
supplemental hereto, 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 applicable rules of any securities exchange or of the
Depositary or with applicable law or as may, consistently herewith, be
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
(b) The definitive Notes shall be typed, printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Notes, as evidenced by their
execution of such Notes.
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Section 2.02 Form Of Trustee's Certificate Of Authentication. The
Trustee's certificate of authentication on all Notes shall be in substantially
the following form:
Trustee's Certificate of Authentication
This Note is one of the Notes of the series herein designated,
described or provided for in the within-mentioned Indenture.
United States Trust Company of New York
By:--------------------------------
Authorized Officer
Section 2.03 Amount Unlimited. The aggregate principal amount of Notes
that may be authenticated and delivered under this Indenture is unlimited,
subject to compliance with the provisions of this Indenture.
Section 2.04 Denominations, Dates, Interest Payment And Record Dates
(a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof or such other amount or
amounts as may be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or in one or more indentures supplemental hereto;
provided, that the principal amount of a Global Note shall not exceed
$200,000,000 unless otherwise permitted by the Depositary.
(b) Each Note shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date; each Note
issued upon transfer, exchange or substitution of a Note shall bear the Original
Issue Date or Dates of such transferred, exchanged or substituted Note, subject
to the provisions of Section 2.13(e) hereof.
(c) Each Note shall bear interest from the later of (1) its Original
Issue Date or the date specified in such Note or (2) the most recent date to
which interest has been paid or duly provided for with respect to such Note
until the principal of such Note is paid or made available for payment, and
interest on each Note shall be payable on each Interest Payment Date after the
Original Issue Date.
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(d) Each Note shall mature on a stated maturity specified in the Note.
The principal amount of each Outstanding Note shall be payable on the maturity
date or dates specified therein.
(e) Unless otherwise specified in a Company Order pursuant to Section
2.05 hereof, interest on each of the Notes shall be calculated on the basis of a
360-day year of twelve 30-day months and shall be computed at a fixed rate until
the maturity of such Notes. The method of computing interest on any Notes not
bearing a fixed rate of interest shall be set forth in a Company Order pursuant
to Section 2.05 hereof. Unless otherwise specified in a Company Order pursuant
to Section 2.05 hereof, principal, interest and premium, if any, on the Notes
shall be payable in the currency of the United States.
(f) Except as provided in the following sentence, the Person in whose
name any Note is registered at the close of business on any Regular Record Date
or Special Record Date with respect to an Interest Payment Date for such Note
shall be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any registration of transfer,
exchange or substitution of such Note subsequent to such Regular Record Date or
Special Record Date and prior to such Interest Payment Date. Any interest
payable at maturity shall be paid to the Person to whom the principal of such
Note is payable.
(g) So long as the Trustee is the registrar and paying agent, the
Trustee shall, as soon as practicable but no later than the Regular Record Date
preceding each applicable Interest Payment Date, provide to the Company a list
of the principal, interest and premium to be paid on Notes on such Interest
Payment Date. The Trustee shall assume responsibility for withholding taxes on
interest paid as required by law except with respect to any Global Note.
Section 2.05 Execution, Authentication, Delivery And Dating.
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(a) The Notes shall be executed on behalf of the Company by one of its
Chairman, President, any Vice President (whether or not designated by a number
or numbers or a word or words added before or after the title "Vice President"),
its Treasurer or an Assistant Treasurer of the Company and attested by the
Secretary or an Assistant Secretary of the Company. The signature of any of
these officers on the Notes may be manual or facsimile. Typographical and other
minor errors or defects in any such signature shall not affect the validity or
enforceability of any Note that has been duly authenticated and delivered by the
Trustee.
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(b) Notes bearing the manual or facsimile signatures of individuals who
were at the time of execution 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 Notes or did
not hold such offices at the date of such Notes.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Notes, and the Trustee in
accordance with any such Company Order shall authenticate and make available for
delivery such Notes. The Notes shall be issued in series. Such Company Order
shall specify the following with respect to each series of Notes: (i) any
limitations on the aggregate principal amount of the Notes to be issued as part
of such series, (ii) the Original Issue Date for such series, (iii) the stated
maturity or maturities of Notes of such series, (iv) the interest rate or rates,
or method of calculation of such rate or rates, for such series and the date
from which such interest will accrue, (v) the terms, if any, regarding the
optional or mandatory redemption of such series, including redemption date or
dates of such series, if any, and the price or prices applicable to such
redemption, (vi) whether or not the Notes of such series shall be issued in
whole or in part in the form of a Global Note and, if so, the Depositary for
such Global Note, (vii) the designation of such series, (viii) if the form of
the Notes of such series is not as described in Exhibit A or Exhibit B hereto,
the form of the Notes of such series, (ix) the maximum annual interest rate, if
any, of the Notes permitted for such series, (x) any other information necessary
to complete the Notes of such series, (xi) the establishment of any office or
agency pursuant to Section 5.02 hereof, and (xii) any other terms of such series
not inconsistent with this Indenture. Prior to authenticating Notes of any
series, and in accepting the additional responsibilities under this Indenture in
relation to such Notes, the Trustee shall receive from the Company the following
at or before the issuance of the initial Note of such series of Notes, and
(subject to Section 8.01 hereof) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked prior to such
issuance:
(1) A Board Resolution authorizing such Company Order or
Orders and, if the form of Notes is established by a Board Resolution
or a Company Order pursuant to a Board Resolution, a copy of such Board
Resolution;
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(2) At the option of the Company, either an Opinion of Counsel
or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel, stating substantially the following subject to
customary qualifications and exceptions:
(A) if the form of Notes has been
established by or pursuant to a Board Resolution, a Company
Order pursuant to a Board Resolution, or in a supplemental
indenture as permitted by Section 2.01 hereof, that such form
has been established in conformity with this Indenture;
(B) that the Indenture has been duly
authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar
laws of general application relating to or affecting the
enforcement of creditors' rights, the application of general
principles of equity (regardless of whether such application
is made in a proceeding at law or in equity) and by an implied
covenant of good faith and fair dealing and except as
enforcement of provisions of the Indenture may be limited by
state laws affecting the remedies for the enforcement of the
security provided for in the Indenture;
(C) that the Indenture is qualified to the
extent necessary under the TIA;
(D) that such Notes have been duly
authorized and executed by the Company, and when authenticated
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 binding obligations of the
Company, enforceable in accordance with their terms, except as
may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar
laws of general application relating to or affecting the
enforcement of creditors' rights, the application of general
principles of equity (regardless of whether such application
is made in a proceeding at law or in equity) and by an implied
covenant of good faith and fair dealing and except as
enforcement of provisions of this Indenture may be limited by
state laws affecting
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the remedies for the enforcement of the security provided for
in this Indenture;
(E) that all consents or approvals of any
federal or state regulatory agency required in connection with
the Company's execution and delivery of this Indenture and
such series of Notes have been obtained and are in full force
and effect (except that no statement need be made with respect
to state securities laws); and
(F)that all conditions that must be met by
the Company to issue Notes under this Indenture have been met.
(3) An Officers' Certificate stating that (i) the Company is
not, and upon the authentication by the Trustee of the series of Notes,
will not be in default under any of the terms or covenants contained in
this Indenture and (ii) all conditions that must be met by the Company
to issue Notes under this Indenture have been met.
(d) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual or facsimile signature of an authorized
officer, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
(e) If all Notes of a series are not to be authenticated and issued at
one time, the Company shall not be required to deliver the Company Order, Board
Resolutions, Officers' Certificate and Opinion of Counsel (including any of the
foregoing that would be otherwise required pursuant to Section 14.05 hereof)
described in Section 2.05(c) hereof at or prior to the authentication of each
Note of such series, if such items are delivered at or prior to the time of
authentication of the first Note of such series to be authenticated and issued.
If all of the Notes of a series are not authenticated and issued at one time,
for each issuance of Notes after the initial issuance of Notes, the Company
shall be required only to deliver to the Trustee the Note and a written request
(executed by one of the Chairman, the President, any Vice President, the
Treasurer, or an Assistant Treasurer) to the Trustee to authenticate such Note
and to deliver such Note in accordance with the instructions specified by such
request. Any such request shall constitute a representation and warranty by the
Company that the statements
14
made in the Officers' Certificate delivered to the Trustee prior to the
authentication and issuance of the first Note of such series are true and
correct on the date thereof as if made on and as of the date thereof.
Section 2.06 Exchange And Registration Of Transfer Of Notes.
----------------------------------------------
(a) Subject to Section 2.13 hereof, Notes may be exchanged for one or
more new Notes of any authorized denominations and of a like aggregate principal
amount, series and stated maturity and having the same terms and Original Issue
Date. Notes to be exchanged shall be surrendered at any of the offices or
agencies to be maintained pursuant to Section 5.02 hereof, and the Trustee shall
authenticate and deliver in exchange therefor the Note or Notes which the
Noteholder making the exchange shall be entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies, a
register or registers in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall register or cause to be registered Notes and shall
register or cause to be registered the transfer of Notes as in this Article II
provided. Such register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, such register shall be open for inspection by the Company. Upon due
presentment for registration of transfer of any Note at any such office or
agency, the Company shall execute and the Trustee shall register, authenticate
and deliver in the name of the transferee or transferees one or more new Notes
of any authorized denominations and of a like aggregate principal amount, series
and stated maturity and having the same terms and Original Issue Date.
(c) All Notes presented for registration of transfer or for exchange,
redemption or payment shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee and duly executed by, the Holder or the attorney in fact of such
Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or registration of
transfer of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Trustee shall not be required to exchange or register the
transfer of any Notes selected, called or being called for redemption (including
Notes, if any, redeemable at the option of the Holder provided such Notes are
then redeemable at
15
such Holder's option) except, in the case of any Note to be redeemed in part,
the portion thereof not to be so redeemed.
(f) If the principal amount, and applicable premium, of part, but not
all, of a Note is paid, then upon surrender to the Trustee of such Note, the
Company shall execute, and the Trustee shall authenticate, deliver and register,
a Note in an authorized denomination in aggregate principal amount equal to, and
having the same terms, Original Issue Date and series as, the unpaid portion of
such Note.
Section 2.07 Mutilated, Destroyed, Lost Or Stolen Notes. (a) If any
Note shall become mutilated or be destroyed, lost or stolen, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, a new Note of like form and principal amount and having the same terms
and Original Issue Date and bearing a number not contemporaneously Outstanding,
in exchange and substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. In every case the
applicant for a substituted Note shall furnish to the Company, the Trustee and
any paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft of a Note, the applicant shall also furnish to the
Company and to the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.
(b) The Trustee shall authenticate any such substituted Note and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Note, 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 connected therewith.
If any Note which has matured, is about to mature, has been redeemed or called
for redemption shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Note, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated Note)
if the applicant for such payment shall furnish to the Company, the Trustee and
any paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section 2.07 by
virtue of the fact that any Note is mutilated, destroyed, lost or stolen shall
constitute an additional contractual
16
obligation of the Company, whether or not such destroyed, lost or stolen Note
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder. All Notes shall be held and owned upon the express condition that, to
the extent permitted by law, the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Notes and
shall preclude to the full extent permitted by applicable law any and all other
rights or remedies with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.08 Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute and the Trustee shall authenticate and deliver
temporary Notes (printed, lithographed or otherwise reproduced). Temporary Notes
shall be issuable in any authorized denomination and substantially in the form
of the definitive Notes but with such omissions, insertions and variations as
may be appropriate for temporary Notes, all as may be determined by the Company.
Every such temporary Note shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes. Without unreasonable delay the Company shall execute and
shall deliver to the Trustee definitive Notes and thereupon any or all temporary
Notes shall be surrendered in exchange therefor at the Corporate Trust Office of
the Trustee, and the Trustee shall authenticate, deliver and register in
exchange for such temporary Notes an equal aggregate principal amount of
definitive Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor to the Noteholders. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes authenticated and delivered hereunder.
Section 2.09 Cancellation Of Notes Paid, Etc. All Notes surrendered for
the purpose of payment, redemption, exchange or registration of transfer shall
be surrendered to the Trustee for cancellation and promptly canceled by it and
no Notes shall be issued in lieu thereof except as expressly permitted by this
Indenture. The Company shall surrender to the Trustee any Notes so acquired by
it and such Notes shall be canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes so canceled.
Section 2.10 Interest Rights Preserved. Each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note, and each such Note shall be so dated that neither
17
gain nor loss of interest shall result from such transfer, exchange or
substitution.
Section 2.11 Special Record Date. If and to the extent that the Company
fails to make timely payment or provision for timely payment of interest on any
series of Notes (other than on an Interest Payment Date that is a maturity
date), that interest shall cease to be payable to the Persons who were the
Noteholders of such series at the applicable Regular Record Date. In that event,
when moneys become available for payment of the interest, the Trustee shall (a)
establish a date of payment of such interest and a Special Record Date for the
payment of that interest, which Special Record Date shall be not more than 15 or
fewer than 10 days prior to the date of the proposed payment and (b) mail notice
of the date of payment and of the Special Record Date not fewer than 10 days
preceding the Special Record Date to each Noteholder of such series at the close
of business on the 15th day preceding the mailing at the address of such
Noteholder, as it appeared on the register for the Notes. On the day so
established by the Trustee the interest shall be payable to the Holders of the
applicable Notes at the close of business on the Special Record Date.
Section 2.12 Payment Of Notes. Payment of the principal, interest and
----------------
premium, if any, on all Notes shall be payable as follows:
(a) On or before 9:30 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Company, of the day on which
payment of principal, interest and premium, if any, is due on any Global Note
pursuant to the terms thereof, the Company shall deliver to the Trustee funds
available on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to withdraw sufficient
funds from an account maintained by the Company with the Trustee or such other
method as is acceptable to the Trustee. On or before 12:00 noon, New York City
time, or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which any payment of interest is due on any Global
Note (other than at maturity), the Trustee shall pay to the Depositary such
interest in same day funds. On or before 1:00 p.m., New York City time, or such
other time as shall be agreed upon between the Trustee and the Depositary, of
the day on which principal, interest payable at maturity and premium, if any, is
due on any Global Note, the Trustee shall deposit with the Depositary the amount
equal to the principal, interest payable at maturity and premium, if any, by
wire transfer into the account specified by the Depositary. As a condition to
the payment, at maturity or upon redemption, of any part of the principal of,
interest on and applicable premium of any Global
18
Note, the Depositary shall surrender, or cause to be surrendered, such Global
Note to the Trustee, whereupon a new Global Note shall be issued to the
Depositary pursuant to Section 2.06(f) hereof.
(b) With respect to any Note that is not a Global Note, principal,
applicable premium and interest due at the maturity of the Note shall be payable
in immediately available funds when due upon presentation and surrender of such
Note at the corporate trust office of the Trustee or at the authorized office of
any paying agent. Interest on any Note that is not a Global Note (other than
interest payable at maturity) shall be paid by check mailed to the Holder
thereof at such Holder's address as it appears on the register by check payable
in clearinghouse funds; provided that if the Trustee receives a written request
from any Holder of Notes, the aggregate principal amount of which having the
same Interest Payment Date equals or exceeds $10,000,000, on or before the
applicable Regular Record Date for such Interest Payment Date, interest shall be
paid by wire transfer of immediately available funds to a bank within the
continental United States designated by such Holder in its request or by direct
deposit into the account of such Holder designated by such Holder in its request
if such account is maintained with the Trustee or any paying agent.
Section 2.13 Notes Issuable In The Form Of A Global Note.
-------------------------------------------
(a) If the Company shall establish pursuant to Section 2.05 hereof that
the Notes of a particular series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 2.05 hereof and the Company Order delivered to
the Trustee thereunder, authenticate and deliver such Global Note or Notes,
which (i) shall represent, shall be denominated in an amount equal to the
aggregate principal amount of, and shall have the same terms as, the Outstanding
Notes of such series to be represented by such Global Note or Notes, (ii) shall
be registered in the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"This Note is a Global Note registered in the name of the Depositary (referred
to herein) or a nominee thereof and, unless and until it is exchanged in whole
or in part for the individual Notes represented hereby, this Global Note may not
be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Unless this
Global Note is presented by an
19
authorized representative of The Depository Trust Company (55 Water Street, New
York, New York), to the Trustee for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., any transfer, pledge or
other use hereof for value or otherwise by or to any person is wrongful since
the registered owner hereof, Cede & Co., has an interest herein" or such other
legend as may be required by the rules and regulations of the Depositary.
(b) Notwithstanding any other provision of Section 2.06 hereof or of
this Section 2.13, unless the terms of a Global Note expressly permit such
Global Note to be exchanged in whole or in part for individual Notes, a Global
Note may be transferred, in whole but not in part, only as described in the
legend thereto.
(c) (i) If at any time the Depositary for a Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or if at any time the Depositary for the Global Note shall no longer be
eligible or in good standing under the Securities Exchange Act of 1934 or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Note. If a successor Depositary for such
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 2.05(c)(vi) hereof shall no longer be effective
with respect to the series of Notes evidenced by such Global Note and the
Company shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Notes of such series in exchange for
such Global Note, shall authenticate and deliver, individual Notes of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Note in exchange for such
Global Note. The Trustee shall not be charged with knowledge or notice of the
ineligibility of a Depositary unless a Responsible Officer assigned to and
working in its corporate trustee administration department shall have actual
knowledge thereof.
(ii) (A) The Company may at any time and in its sole
discretion determine that all Outstanding (but not less than all) Notes of a
series issued or issuable in the form of one or more Global Notes shall no
longer be represented by such Global Note or Notes. In such event the Company
shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Notes in exchange for such Global
Note, shall authenticate and deliver individual Notes of like
20
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Note or Notes in exchange for such Global Note
or Notes.
(B) Within seven days after the occurrence of an
Event of Default, the Company shall execute, and the Trustee shall authenticate
and deliver, Notes of such series in definitive registered form in any
authorized denominations and in aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Notes in definitive registered form in authorized
denominations. Upon the exchange of a Global Note for individual Notes, such
Global Note shall be canceled by the Trustee. Notes issued in exchange for a
Global Note pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Global Note, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Notes to the Depositary for
delivery to the persons in whose names such Notes are so registered, or if the
Depositary shall refuse or be unable to deliver such Notes, the Trustee shall
deliver such Notes to the persons in whose names such Notes are registered,
unless otherwise agreed upon between the Trustee and the Company, in which event
the Company shall cause the Notes to be delivered to the persons in whose names
such Notes are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
(e) Pursuant to the provisions of this subsection, at the option of the
Trustee and upon 30 days' written notice to the Depositary but not prior to the
first Interest Payment Date of the respective Global Notes, the Depositary shall
be required to surrender any two or more Global Notes which have identical
terms, including, without limitation, identical maturities, interest rates and
redemption provisions (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered thereto and that shall indicate each applicable
Original Issue Date and the
21
principal amount applicable to each such Original Issue Date. The exchange
contemplated in this subsection shall be consummated at least 30 days prior to
any Interest Payment Date applicable to any of the Global Notes surrendered to
the Trustee. Upon any exchange of any Global Note with two or more Original
Issue Dates, whether pursuant to this Section or pursuant to Section 2.06 or
Section 3.03 hereof, the aggregate principal amount of the Notes with a
particular Original Issue Date shall be the same before and after such exchange,
after giving effect to any retirement of Notes and the Original Issue Dates
applicable to such Notes occurring in connection with such exchange.
ARTICLE III
REDEMPTION OF NOTES
Section 3.01 Applicability Of Article. Such of the Notes as are, by
their terms, redeemable prior to their stated maturity date at the option of the
Company, may be redeemed by the Company at such times, in such amounts and at
such prices as may be specified therein and in accordance with the provisions of
this Article III.
Section 3.02 Notice Of Redemption; Selection Of Notes.
----------------------------------------
(a) The election of the Company to redeem any Notes shall be evidenced
by an Officer's Certificate which shall be given with notice of redemption to
the Trustee at least 45 days (or such shorter period acceptable to the Trustee
in its sole discretion) prior to the redemption date specified in such notice.
(b) Notice of redemption to each Holder of Notes to be redeemed as a
whole or in part shall be given by the Trustee, in the manner provided in
Section 14.10 hereof, no less than 30 or more than 60 days prior to the date
fixed for redemption. Any notice which is given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Noteholder receives the notice. In any case, failure duly to give such notice,
or any defect in such notice, to the Holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.
(c) Each such notice shall specify the date fixed for redemption, the
places of redemption and the redemption price (or the method for calculation
thereof) at which such Notes are to be redeemed, and shall state that (subject
to subsection (e) of this Section) payment of the redemption price of such Notes
or portion
22
thereof to be redeemed will be made upon surrender of such Notes at such places
of redemption, that interest accrued to the date fixed for redemption will be
paid as specified in such notice, and that from and after such date interest
thereon shall cease to accrue. If less than all of a series of Notes having the
same terms are to be redeemed, the notice shall specify the Notes or portions
thereof to be redeemed. If any Note is to be redeemed in part only, the notice
which relates to such Note shall state the portion of the principal amount
thereof to be redeemed, and shall state that, upon surrender of such Note, a new
Note or Notes having the same terms in aggregate principal amount equal to the
unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a supplemental indenture or Company
Order under Section 2.05 hereof, if less than all of a series of Notes, or any
tranche thereof, is to be redeemed, the Trustee shall select in such manner as
it shall deem appropriate and fair in its discretion the particular Notes to be
redeemed in whole or in part and shall thereafter promptly notify the Company in
writing of the Notes so to be redeemed. If less than all of a series of Notes
represented by a Global Note is to be redeemed, the particular Notes or portions
thereof of such series to be redeemed shall be selected by the Depositary for
such series of Notes in such manner as the Depositary shall determine. Notes
shall be redeemed only in denominations of $1,000, provided that any remaining
principal amount of a Note redeemed in part shall be a denomination authorized
under this Indenture.
(e) If at the time of the mailing of any notice of redemption at the
option of the Company, the Company shall not have irrevocably directed the
Trustee to apply funds then on deposit with the Trustee or held by it and
available to be used for the redemption of Notes to redeem all the Notes called
for redemption, such notice, at the election of the Company, may state that it
is conditional and subject to the receipt of the redemption moneys by the
Trustee on or before the date fixed for redemption and that such notice shall be
of no effect unless such moneys are so received on or before such date.
Section 3.03 Payment Of Notes On Redemption; Deposit Of Redemption Price.
-----------------------------------------------------------
(a) If notice of redemption for any Notes shall have been given as
provided in Section 3.02 hereof and such notice shall not contain the language
permitted at the Company's option under Section 3.02(e) hereof, such Notes or
portions of Notes called for redemption shall become due and payable on the date
and at the places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption of such Notes.
Interest on the Notes or portions
23
thereof so called for redemption shall cease to accrue and such Notes or
portions thereof shall be deemed not to be entitled to any benefit under this
Indenture except to receive payment of the redemption price together with
interest accrued thereon to the date fixed for redemption. Upon presentation and
surrender of such Notes at the place of payment specified in such notice, such
Notes or the specified portions thereof shall be paid and redeemed at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption.
(b) If notice of redemption shall have been given as provided in
Section 3.02 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.02(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date and at the places
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption of such Notes, and interest on the
Notes or portions thereof so called for redemption shall cease to accrue and
such Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption; provided that,
in each case, the Company shall have deposited with the Trustee or a paying
agent on or prior to 11:00 a.m. New York City time on such redemption date an
amount sufficient to pay the redemption price together with interest accrued to
the date fixed for redemption. Upon the Company making such deposit and, upon
presentation and surrender of such Notes at such a place of payment in such
notice specified, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption. If the Company shall not make such
deposit on or prior to the redemption date, the notice of redemption shall be of
no force and effect and the principal on such Notes or specified portions
thereof shall continue to bear interest as if the notice of redemption had not
been given.
(c) No notice of redemption of Notes shall be mailed during the
continuance of any Event of Default, except (1) that, when notice of redemption
of any Notes has been mailed, the Company shall redeem such Notes but only if
funds sufficient for that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for such purpose, and
(2) that notices of redemption of all Outstanding Notes may be given during the
continuance of an Event of Default.
(d) Upon surrender of any Note redeemed in part only, the Company shall
execute, and the Trustee shall authenticate, deliver and register, a new Note or
Notes of authorized
24
denominations in aggregate principal amount equal to, and having the same terms,
Original Issue Date or Dates and series as, the unredeemed portion of the Note
so surrendered.
ARTICLE IV
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 4.01 Satisfaction And Discharge.
--------------------------
(a) If at any time:
(1) the Company shall have paid or caused to be paid the
principal of and premium, if any, and interest on all the Outstanding
Notes, as and when the same shall have become due and payable,
(2) the Company shall have delivered to the Trustee for
cancellation all Outstanding Notes, or
(3) the Company shall have irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds the entire
amount in (A) cash, (B) U.S. Government Obligations maturing as to
principal and interest in such amounts and at such times as will insure
the availability of cash, or (C) a combination of cash and U.S.
Government Obligations, in any case sufficient, without reinvestment,
as certified by an independent public accounting firm of national
reputation in a written certification delivered to the Trustee, to pay
at maturity or the applicable redemption date (provided that notice of
redemption shall have been duly given or irrevocable provision
satisfactory to the Trustee shall have been duly made for the giving of
any notice of redemption) all Outstanding Notes, including principal
and any premium, if any, and interest due or to become due to such date
of maturity, as the case may be, and, unless all Outstanding Notes are
to be due within 90 days of such deposit by redemption or otherwise,
shall also deliver to the Trustee an opinion of counsel expert in
federal income tax matters to the effect that the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or similar pronouncement by the Internal Revenue Service or that
there has been a change of law (collectively, an "External Tax
Pronouncement"), in either case to the effect that the Holders of the
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or discharge of the Indenture,
25
and if, in any such case, (x) the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company and (y) the
Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this
Indenture have been complied with, then this Indenture shall cease to
be of further effect (except as to (i) rights of registration of
transfer and exchange of Notes, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Notes, (iii) rights of Noteholders
to receive payments of principal thereof, and any premium and interest
thereon, upon the original stated due dates therefor or upon the
applicable redemption date (but not upon acceleration of maturity) from
the moneys and U.S. Government Obligations held by the Trustee pursuant
to Section 4.02 hereof, (iv) the rights and immunities of the Trustee
hereunder, (v) the obligations of the Company under Sections 5.02 and
5.03 hereof, (vi) the obligations and rights of the Trustee and the
Company under Section 4.04 hereof, and (vii) the duties of the Trustee
with respect to any of the foregoing), and the Company shall be deemed
to have paid and discharged the entire indebtedness represented by, and
its obligations under, the Notes, and the Trustee, on demand of the
Company and at the cost and expense of the Company, shall execute
proper instruments acknowledging such satisfaction and discharge of
this Indenture and the Trustee shall at the request of the Company
return to the Company all property and money held by it under this
Indenture and determined by it from time to time in accordance with the
certification pursuant to this Section 4.01(a)(3) to be in excess of
the amount required to be held under this Section.
If the Notes are deemed to be paid and discharged pursuant to
Section 4.01(a)(3) hereof, within 60 days after those Notes are so deemed to be
paid and discharged, the Trustee shall cause a written notice to be given to
each Holder in the manner provided by Section 14.10 hereof. The notice shall:
(i) state that the Notes are deemed to be paid and discharged;
(ii) set forth a description of any U.S. Government
Obligations and cash held by the Trustee as described above;
(iii) if any Notes will be called for redemption, specify the
date or dates on which those Notes are to be called for redemption.
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Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 8.06
hereof shall survive.
(b) If the Company shall have paid or caused to be paid the principal
of and premium, if any, and interest on any Note, as and when the same shall
have become due and payable or the Company shall have delivered to the Trustee
for cancellation any Outstanding Note, such Note shall cease to be entitled to
any lien or benefit under this Indenture.
(c) If the Company makes the deposit of cash and/or U.S. Government
Obligations with respect to one or more series of Notes described in Section
4.01(a) hereof and otherwise complies with the requirements of such Section for
the satisfaction and discharge of this Indenture (except that the opinion of
counsel referred to in Section 4.01(a)(3) need not be based on an External Tax
Pronouncement, and shall be to the effect that the Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit and the release of the Company from its obligations referred to in
this Section 4.01(c) under this Indenture), then the provisions of this
Indenture shall remain in full force and effect and the indebtedness represented
by, and the Company's obligations under, such Notes shall be deemed satisfied,
the Company shall be released with respect to such series of Notes from its
obligations under Sections 5.06, 5.07, 5.08, 5.09 and Article XI hereof.
Section 4.02 Deposited Moneys To Be Held In Trust By Trustee. Subject
to Section 4.04, all moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 4.01 hereof, shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the
Company if acting as its own paying agent), to the Holders of the particular
Notes for the payment or redemption of which such moneys and U.S. Government
Obligations have been deposited with the Trustee of all sums due and to become
due thereon for principal and premium, if any, and interest.
Section 4.03 Paying Agent To Repay Moneys Held. Upon the satisfaction
and discharge of this Indenture all moneys then held by any paying agent for the
Notes (other than the Trustee) shall, upon written demand by the Company, be
repaid to the Company or paid to the Trustee, and thereupon such paying agent
shall be released from all further obligations with respect to such moneys.
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Section 4.04 Return Of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee for payment of the principal of or any premium or interest
on any Notes and not applied but remaining unclaimed by the Holders of such
Notes for two years after the date upon which the principal of or any premium or
interest on such Notes, as the case may be, shall have become due and payable,
shall be repaid to the Company, subject to applicable abandoned property laws,
by the Trustee on written demand by the Company; and any Holder of any of such
Notes shall thereafter look only to the Company for any payment which such
Holder may be entitled to collect.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01 Payment Of Principal And Interest. The Company covenants
and agrees for the benefit of the Holders of the Notes that it will duly and
punctually pay or cause to be paid the principal of and any premium and
interest, if any, on, each of the Notes at the places, at the respective times
and in the manner provided in such Notes or in this Indenture.
Section 5.02 Offices For Payments, Etc. So long as any Notes are
Outstanding hereunder, the Company will maintain in the Borough of Manhattan,
The City of New York, State of New York an office or agency where the Notes may
be presented for payment, for exchange as in this Indenture provided and for
registration of transfer as in this Indenture provided. The Corporate Trust
Office of the Trustee shall serve as the initial location of such office.
The Company will maintain in the Borough of Manhattan, The City of New
York, State of New York an office or agency where notices and demands to or upon
the Company in respect of the Notes or this Indenture may be served. The
Corporate Trust Office of the Trustee shall serve as the initial location of
such office.
In case the Company shall fail to maintain any office or agency
required by this Section to be located in the Borough of Manhattan, The City of
New York, State of New York or shall fail to give such notice of the location or
of any change in the location of any of the above offices or agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee, and, in such event, the Trustee shall act as the
Company's agent to receive all such presentations, surrenders, notices and
demands.
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The Company may from time to time designate one or more additional
offices or agencies where the Notes may be presented for payment, for exchange
as in this Indenture provided and for registration of transfer as in this
Indenture provided, and the Company may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain any office or
agency provided for in this Section. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof and of any change
in the location of any such other office or agency.
Section 5.03 Appointment To Fill A Vacancy In Office Of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 8.11, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 5.04 Provision As To Paying Agent. The Trustee shall be the
paying agent for the Notes and, at the option of the Company, the Company may
appoint additional paying agents (including without limitation itself). Whenever
the Company shall appoint a paying agent other than the Trustee with respect to
the Notes, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that such paying agent will hold all sums received by it
as such agent for the payment of the principal of, premium, if any, or
interest, on the Notes (whether such sums have been paid to it by the
Company or by any other obligor on the Notes) in trust for the benefit
of the Holders of the Notes, or of the Trustee until such sums shall be
paid to such Holders or otherwise disposed of as herein provided;
(2) that such paying agent will give the Trustee notice of any
failure by the Company (or by any other obligor on Notes) to make any
payment of the principal of, premium, if any, or interest on the Notes
when the same shall be due and payable; and
(3) that such paying agent will at any time during the
continuance of any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such
paying agent.
The Company will, on or prior to each due date of the
principal of and any premium, if any, or interest on the Notes, deposit with the
paying agent a sum sufficient to pay such
29
principal and any premium or interest so becoming due, such sum to be held in
trust for the benefit of the Holders of the Notes entitled to such principal of
and any premium or interest, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of any failure to take such action.
If the Company shall act as its own paying agent with respect
to the Notes, it will, on or before each due date of the principal of (and
premium, if any,) or interest, if any, on the Notes, set aside, segregate and
hold in trust for the benefit of the Holders of the Notes, a sum sufficient to
pay such principal (and premium, if any,) or interest, if any, so becoming due
until such sums shall be paid to such Holders or otherwise disposed of as herein
provided. The Company will promptly notify the Trustee of any failure to take
such action.
The Company may at any time pay or cause to be paid to the
Trustee all sums held in trust by it or any paying agent hereunder, as required
by this Section, such sums to be held by the Trustee upon the trusts herein
contained, 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.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 4.03 and 4.04.
Section 5.05 Certificates And Notice To Trustee. The Company shall, on
or before April 1, of each year, commencing April 1, 2000, deliver to the
Trustee a certificate from its principal executive officer, principal financial
officer or principal accounting officer covering the preceding calendar year and
stating whether or not, to the knowledge of such Person, the Company has
complied with all conditions and covenants under this Indenture, and, if not,
describing in reasonable detail any failure by the Company to comply with any
such conditions or covenants. For purposes of this Section, compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Section 5.06 Restrictions On Liens (a) So long as any Notes are
Outstanding, the Company will not issue, assume, guarantee or permit to exist
any Debt secured by any Lien on any Operating Property of the Company, whether
owned at the date of this Indenture or thereafter acquired, without in any such
case effectively securing the Outstanding Notes (together with, if the Company
shall so determine, any other Debt of or guaranteed by the Company ranking
equally with, the Notes) equally and ratably
30
with such Debt (but only so long as such Debt is so secured); provided, however,
that the foregoing restriction shall not apply to Debt secured by any of the
following:
(i)......Liens on any Operating Property existing at the time
of acquisition thereof (which Liens may also extend to subsequent repairs,
alterations and improvements to such Operating Property);
(ii).....Liens on operating property of a corporation existing
at the time such corporation is merged into or consolidated with the Company, or
at the time of a sale, lease, or other disposition of the properties of such
corporation or a division thereof as an entirety or substantially as an entirety
to the Company;
(iii)....Liens on Operating Property to secure all or part of
the cost of acquiring, constructing, developing, or substantially repairing,
altering, or improving such property, or to secure indebtedness incurred to
provide funds for any such purpose or for reimbursement of funds previously
expended for any such purpose, provided such Liens are created or assumed
contemporaneously with, or within eighteen (18) months after, such acquisition
or the completion of construction, development, or substantial repair,
alteration or improvement;
(iv).....Liens in favor of any State, or any department,
agency, or instrumentality or political subdivision of any State, or for the
benefit of holders of securities issued by any such entity (or providers of
credit enhancement with respect to such securities), to secure any Debt
(including, without limitation, obligations of the Company with respect to
industrial development, pollution control or similar revenue bonds) incurred for
the purpose of financing all or any part of the purchase price or the cost of
constructing, developing, or substantially repairing, altering, or improving
Operating Property of the Company;
(v) Liens under the First Mortgage, where such Debt has
been issued for purposes of any transaction described in (iv) above;
(vi) Liens under Section 8.06 hereof; or
(vii) Any extension, renewal or replacement (or successive
extensions, renewals, or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (i) to (vi), inclusive; provided, however,
that the principal amount of Debt secured thereby and not otherwise authorized
by said clauses (i) to (vi), inclusive, shall not exceed the principal amount of
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Debt, plus any premium or fee payable in connection with any such extension,
renewal, or replacement, so secured at the time of such extension, renewal, or
replacement.
(b) Notwithstanding the provisions of Section 5.06(a), the Company may
issue, assume, or guarantee Debt, or permit to exist any Debt, in each case,
secured by Liens which would otherwise be subject to the restrictions of Section
5.06(a) up to an aggregate principal amount that, together with the principal
amount of all other Debt of the Company secured by Liens (other than Liens
permitted by Section 5.06(a) that would otherwise be subject to any of the
foregoing restrictions) and the Value of all Sale and Lease-Back Transactions in
existence at such time (other than any Sale and Lease-Back Transaction that, if
such Sale and Lease-Back Transaction had been a Lien, would have been permitted
by Section 5.06(a), other than Sale and Lease-Back Transactions permitted by
Section 5.07 because the commitment by or on behalf of the purchaser was
obtained no later than eighteen (18) months after the later of events described
in (i) or (ii) of Section 5.07, and other than Sale and Lease-Back Transactions
as to which application of amounts have been made in accordance with clause (z)
of Section 5.07), does not at the time exceed the greater of fifteen percent
(15%) of Tangible Assets or fifteen percent (15%) of Capitalization.
(c) If the Company shall issue, assume, or guarantee any Debt secured
by any Lien and if Section 5.06(a) requires that the Outstanding Notes be
secured equally and ratably with such Debt, the Company will promptly execute,
at its expense, any instruments necessary to so equally and ratably secure the
Outstanding Notes and deliver the same to the Trustee along with:
(i) An Officers' Certificate stating that the covenant of the
Company contained in Section 5.06(a) has been complied with; and
(ii) An Opinion of Counsel to the effect that the Company has
complied with the covenant contained in Section 5.06(a), and that any
instruments executed by the Company in the performance of such covenant comply
with the requirements of such covenant.
In the event that the Company shall hereafter secure
Outstanding Notes equally and ratably with any other obligation or indebtedness
pursuant to the provisions of this Section 5.06, the Company will, upon the
request of the Trustee, enter into an indenture or agreement supplemental hereto
and take such other action, if any, as the Trustee may reasonably request to
enable it to enforce effectively the rights of the Holders of
32
Outstanding Notes so secured, equally and ratably with such other obligation or
indebtedness.
Section 5.07 Restrictions On Sale And Lease-Back Transactions. So long
as any Notes are Outstanding, the Company will not enter into or permit to exist
any Sale and Lease-Back Transaction with respect to any Operating Property if,
in any case, the commitment by or on behalf of the purchaser is obtained more
than eighteen (18) months after the later of (i) the completion of the
acquisition, construction, or development of such Operating Property or (ii) the
placing in operation of such Operating Property or of such Operating Property as
constructed, developed, or substantially repaired, altered, or improved, unless
(x) the Company would be entitled pursuant to Section 5.06(a) to issue, assume,
guarantee or permit to exist Debt secured by a Lien on such Operating Property
without equally and ratably securing the Notes or (y) the Company would be
entitled pursuant to Section 5.06(b), after giving effect to such Sale and
Lease-Back Transaction, to incur $1.00 of additional Debt secured by Liens
(other than Liens permitted by Section 5.06(a)) or (z) the Company shall apply
or cause to be applied, in the case of a sale or transfer for cash, an amount
equal to the net proceeds thereof (but not in excess of the net book value of
such Operating Property at the date of such sale or transfer) and, in the case
of a sale or transfer otherwise than for cash, an amount equal to the fair value
(as determined by the Board of Directors) of the Operating Property so leased,
to the retirement, within one hundred eighty (180) days after the effective date
of such Sale and Lease-Back Transaction, of Notes (in accordance with their
terms) or other Debt of the Company ranking senior to, or equally with, the
Notes; provided, however, that the amount to be applied to such retirement of
Debt shall be reduced by an amount equal to the principal amount, plus any
premium or fee paid in connection with any redemption in accordance with the
terms of Debt voluntarily retired by the Company within such one hundred eighty
(180) day period, excluding retirement pursuant to mandatory sinking fund or
prepayment provisions and payments at maturity.
Section 5.08 Corporate Existence. Subject to the rights of the Company
under Article XII, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence; provided,
however, that the Company shall not be required to preserve any such right or
franchise if, in the judgment of the Company, the preservation thereof is no
longer desirable in the conduct of the business of the Company.
33
Section 5.09 Issuance of Additional First Mortgage Bonds. After the
issuance of the first series of Notes, the Company shall not issue any
additional First Mortgage Bonds under the First Mortgage.
ARTICLE VI
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 6.01 Company To Furnish Noteholder Lists. The Company and any
other obligor on the Notes shall furnish or cause to be furnished to the Trustee
a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Notes:
(a) semi-annually and not more than 15 days after each Regular Record
Date for each Interest Payment Date that is not a maturity date, as of such
Regular Record Date, and such list need not include information received after
such date; and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Company of any such request, as of a date not more
than 15 days prior to the time such information is furnished, and such list need
not include information received after such date;
provided that if and so long as the Trustee shall be the registrar for the
Notes, such list shall not be required to be furnished.
Section 6.02 Preservation And Disclosure Of Noteholder Lists.
-----------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of the
Notes (i) contained in the most recent lists furnished to it as provided in
Section 6.01, (ii) received by it in the capacity of registrar for the Notes, if
so acting, and (iii) filed with it within the two preceding years pursuant to
Section 6.04(d)(2). The Trustee may destroy any list furnished to it as provided
in Section 6.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Notes (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of Notes
34
with respect to their rights under this Indenture or under the Notes and such
application is accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section; or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved at the
time by the Trustee. in accordance with the provisions of such subsection (a)
and as to the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Notes, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of such subsection (a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of a Note, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of the Company or the Trustee shall be held accountable by reason
of the
35
disclosure of any such information as to the names and addresses of the Holders
of Notes in accordance with the provisions of subsection (b) of this Section,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under such subsection (b).
Section 6.03 Reports By The Company. The Company shall:
----------------------
(a) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit by mail to all Holders of Notes, within 30 days after the
filing thereof with the Trustee in the manner and to the extent provided in
Section 6.04(d), such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
Section 6.04 Reports By The Trustee.
----------------------
(a) Annually, not later than August 15 of each year, the Trustee shall
transmit by mail a brief report dated as of such date that complies with Section
313(a) of the TIA (to the extent required by such Section).
36
(b) The Trustee shall from time to time transmit by mail brief reports
that comply, both in content and date of delivery, with Section 313(b) of the
TIA (to the extent required by such Section).
(c) A copy of each such report filed pursuant to this section shall, at
the time of such transmission to such Holders, be filed by the Trustee with each
stock exchange upon which any Notes are listed and also with the Commission. The
Company will notify the Trustee promptly in writing upon the listing of such
Notes on any stock exchange.
(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Notes, as their names and
addresses appear in the register for the Notes;
(2) by mail to such Holders of Notes as have, within the two
years preceding such transmission, filed their names and addresses with
the Trustee for such purpose;
(3) by mail, except in the case of reports pursuant to Section
6.04(b) and (c) hereof, to all Holders of Notes whose names and
addresses have been furnished to or received by the Trustee pursuant to
Section 6.01 and 6.02(a)(ii) hereof; and
(4) at the time such report is transmitted to the Holders of
the Notes, to each exchange on which Notes are listed and also with the
Commission.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 7.01 Events Of Default.
-----------------
(a) If one or more of the following Events of Default shall have
occurred and be continuing:
(1) default in the payment of any installment of interest upon
any of the Notes as and when the same shall due and payable, and
continuance of such default for a period of sixty (60) days;
(2) default in the payment of the principal of or any
premium on any of the Notes as and when the same shall become due and
payable;
37
(3) failure on the part of the Company duly to
observe or perform any other of the covenants or agreements on the part
of the Company contained in the Notes or in this Indenture for a period
of ninety (90) days after the date on which written notice specifying
such failure, stating that such notice is a "Notice of Default"
hereunder and demanding that the Company remedy the same, shall have
been given to the Company by the Trustee by registered mail, or to the
Company and the Trustee by the Holders of not less than 33% in
aggregate principal amount of the Notes at the time Outstanding;
(4) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, 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 law, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for any substantial part of the property of
the Company, or ordering the winding up or liquidation of the affairs
of the Company, and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days; or
(5) the Company shall commence a voluntary case or proceeding
under any applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect or any other case or proceeding
to be adjudicated a bankrupt or insolvent, or consent to the entry of a
decree or order for relief in an involuntary case under any such 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 law, or
consent to the filing of such petition or to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for any
substantial part of the property of the Company, or make any general
assignment for the benefit of creditors, or the notice by it in writing
of its inability to pay its debts generally as they become due, or the
taking of any corporate action by the Company in furtherance of any
such action;
then, unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the Holders of a majority in aggregate principal
amount of the Notes then Outstanding, by notice in writing to the Company (and
to the
38
Trustee if given by such Holders), may declare the principal of all the Notes to
be due and payable immediately and upon any such declaration the same shall
become immediately due and payable, anything in this Indenture or in the Notes
contained to the contrary notwithstanding.
The foregoing paragraph, however, is subject to the condition
that if, at any time after the principal of the Notes shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all of the Notes and the principal of and
any premium on any and all Notes which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest, to the extent
that payment of such interest is enforceable under applicable law, and on such
principal and applicable premium at the rate borne by the Notes to the date of
such payment or deposit) and all sums paid or advanced by the Trustee hereunder,
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.06 hereof, and any and all defaults under this Indenture, other than
the non-payment of principal of and accrued interest on Notes which shall have
become due solely by acceleration of maturity, shall have been cured or waived
- -- then and in every such case such payment or deposit shall cause an automatic
waiver of the Event of Default and its consequences and shall cause an automatic
rescission and annulment of the acceleration of the Notes; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
(b) If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
39
Section 7.02 Collection Of Indebtedness By Trustee; Trustee May Prove Debt.
-------------------------------------------------------------
(a) The Company covenants that if an Event of Default described in
clause (a)(1) or (a)(2) of Section 7.01 shall have occurred and be continuing,
then, upon demand of the Trustee, the Company shall pay to the Trustee, for the
benefit of the Holders of the Notes, the whole amount that then shall have so
become due and payable on all such Notes for principal or interest, as the case
may be, with interest upon the overdue principal and any premium and (to the
extent that payment of such interest is enforceable under applicable law) upon
the overdue installments of interest at the rate borne by the Notes; and, in
addition thereto, such further amounts as shall be sufficient to cover the costs
and expenses of collection, including reasonable compensation to the Trustee,
its agents, attorneys and counsel, any expenses or liabilities incurred by the
Trustee hereunder other than through its negligence or bad faith. Until such
demand is made by the Trustee, the Company may pay the principal of and interest
on the Notes to the Holders, whether or not the Notes be overdue.
(b) In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may enforce
any such judgment or final decree against the Company or any other obligor on
the Notes and collect in the manner provided by law out of the property of the
Company or any other obligor on such series of Notes wherever situated, the
moneys adjudged or decreed to be payable.
(c) In case there shall be pending proceedings relative to the Company
or any other obligor upon the Notes under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
such other obligor, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
40
(1) to file and prove a claim or claims for the whole amount
of the principal and interest owing and unpaid in respect of the Notes,
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
amounts due to the Trustee under Section 8.06 hereof) and of the
Noteholders allowed in any judicial proceedings relative to the Company
or such other obligor, or to the creditors or property of the Company
or such other obligor; and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Noteholders and of
the Trustee on their behalf; and any trustee, receiver, liquidator,
custodian or other similar official is hereby authorized by each of the
Noteholders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of the payments directly to the
Noteholders, to pay to the Trustee such amounts due pursuant to Section
8.06 hereof.
(d) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes of any series 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 except to vote for the election of a trustee in bankruptcy or similar
person.
(e) All rights of action and of asserting claims under this Indenture,
or under any of the Notes may be prosecuted and enforced by the Trustee without
the possession of any of the Notes or the production thereof at any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee and its agents,
attorneys and counsel, shall be for the ratable benefit of the Holders of the
Notes in respect of which such action was taken.
(f) In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Notes in respect to which action as taken, and it shall not be
necessary to make any Holders of such Notes parties to any such proceedings.
41
Section 7.03 Application Of Proceeds. Any moneys collected by the
Trustee with respect to any of the Notes pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender thereof
if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to
Section 8.06 hereof;
SECOND: In case the principal of the Outstanding Notes in respect of
which such moneys have been collected shall not have become due and be unpaid,
to the payment of interest on the Notes, in the order of the maturity of the
installments of such interest, with interest (to the extent allowed by law) upon
the overdue installments of interest at the rate borne by the Notes, such
payments to be made ratably to the persons entitled thereto, and then to the
payment to the Holders entitled thereto of the unpaid principal of and
applicable premium on any of the Notes which shall have become due (other than
Notes previously called for redemption for the payment of which moneys are held
pursuant to the provisions of this Indenture), whether at stated maturity or by
redemption, in the order of their due dates, beginning with the earliest due
date, and if the amount available is not sufficient to pay in full all Notes due
on any particular date, then to the payment thereof ratably, according to the
amounts of principal and applicable premium due on that date, to the Holders
entitled thereto, without any discrimination or privilege;
THIRD: In case the principal of the Outstanding Notes in respect of
which such moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Notes for principal and any premium and interest thereon, with interest on the
overdue principal and any premium and (to the extent allowed by law) upon
overdue installments of interest at the rate borne by the Notes; and in case
such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Notes, then to the payment of such principal and any premium and
interest without preference or priority of principal and any premium over
interest, or of interest over principal and any premium or of any installment of
interest over any other installment of interest, or of any Note over any other
Note, ratably to the aggregate of such principal and any premium and accrued and
unpaid interest; and
42
FOURTH: To the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the same, or
as a court of competent jurisdiction may determine.
Section 7.04 Limitations On Suits By Noteholders.
-----------------------------------
(a) No Holder of any Note shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default with respect to such Note and of the continuance
thereof, as hereinabove provided, and unless also Noteholders of a majority in
aggregate principal amount of the Notes then Outstanding affected by such Event
of Default shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
the taker and Holder of every Note with every other taker and Holder and the
Trustee, that no one or more Holders of Notes 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 Holder of Notes, or to
obtain or seek to obtain priority over or preference to any other such Holder or
to enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all Holders of Notes. For the
protection and enforcement of the provisions of this Section, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
(b) Notwithstanding any other provision in this Indenture, however, the
rights of any Holder of any Note to receive payment of the principal of and any
premium and interest on such Note, on or after the respective due dates
expressed in such Note or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such respective dates
are absolute and unconditional, and shall not be impaired or affected without
the consent of such Holder.
Section 7.05 Suits For Enforcement. In case an Event of Default has
---------------------
occurred, has not been waived and is continuing hereunder, the Trustee may in
its discretion proceed to protect
43
and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted to it under this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
Section 7.06 Powers And Remedies Cumulative; Delay Or Omission Not
Waiver Of Default. No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Notes is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
No delay or omission of the Trustee or of any Holder of Notes to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 7.04, every right and power given by this
Indenture or by law to the Trustee or to the Holders of Notes may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Holders of Notes, as the case may be.
Section 7.07 Direction Of Proceedings And Waiver Of Defaults By
--------------------------------------------------
Majority Of Noteholders.
- -----------------------
(a) The Holders of a majority in aggregate principal amount of the
Notes at the time Outstanding shall have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee; provided that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and provided further that (subject to Section 8.01 hereof)
the Trustee shall have the right to decline to follow any such direction if the
Trustee being advised by counsel determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors or trustees, executive committee, or a trust committee of directors
or trustees or Responsible Officers shall determine that the action or
proceeding so directed would involve the Trustee in personal liability. Nothing
in this Indenture shall impair the right of the Trustee in its discretion to
take
44
any action deemed proper by the Trustee and which is not inconsistent with such
direction or directions by Noteholders.
(b) The Holders of a majority in aggregate principal amount of the
Notes at the time Outstanding may on behalf of all of the Holders of the Notes
waive any past default or Event of Default hereunder and its consequences except
a default in the payment of principal of or any premium or interest on the
Notes. Upon any such waiver the Company, the Trustee and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Upon any such
waiver, such default shall cease to exist and be deemed to have been cured and
not to be continuing, and any Event of Default arising therefrom shall be deemed
to have been cured and not to be continuing, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 7.08 Notice Of Default. The Trustee shall, within 90 days after
the occurrence of a default with respect to the Notes, give to all Holders of
the Notes, in the manner provided in Section 14.10, notice of such default known
to the Trustee, unless such default shall have been cured or waived before the
giving of such notice, the term "default" for the purpose of this Section 7.08
being hereby defined to be any event which is or after notice or lapse of time
or both would become an Event of Default; provided that, except in the case of
default in the payment of the principal of or any premium or interest on any of
the Notes, the Trustee shall be protected in withholding such notice if and so
long as its board of directors or trustees, executive committee, or a trust
committee of directors or trustees or Responsible Officers in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Notes.
Section 7.09 Undertaking To Pay Costs. All parties to this Indenture
agree, and each Holder of any Note by 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 this Section 7.09 shall not apply to any suit
instituted by the Trustee, or to any suit
45
instituted by any Noteholder, or group of Noteholders, holding in the aggregate
more than 10% in principal amount of the Notes Outstanding, or to any suit
instituted by any Noteholder for the enforcement of the payment of the principal
of or any premium or interest on any Note on or after the due date expressed in
such Note or the applicable redemption date.
Section 7.10 Restoration Of Rights On Abandonment Of Proceedings. In
case the Trustee or any Holder shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee or to
such Holder, then, and in every such case, the Company, the Trustee and the
Holders shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Holders shall continue as though no such proceedings had been taken.
Section 7.11 Waiver Of Usury, 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 usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and 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 VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties And Responsibilities Of Trustee.
--------------------------------------
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
46
(b) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default and
after the curing or waiving of all Events of Default which may have
occurred
(A) the duties and obligations of the
Trustee shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith or actual
knowledge on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction, pursuant to this Indenture, of the Holders of a majority in
principal amount of the Notes, including, but not limited to, Section
7.07 hereof relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture.
Section 8.02 Reliance On Documents, Opinions, Etc. Except as otherwise
------------------------------------
provided in Section 8.01 hereof:
47
(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, consent, order, note or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or 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
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders, pursuant to this Indenture, unless such
Noteholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred by such
exercise;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, note or other paper or document, unless requested in writing to
do so by the Holders of at least a majority in principal amount of the then
Outstanding Notes; provided that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding; and
48
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
provided that the Trustee shall not be liable for the conduct or acts of any
such agent or attorney that shall have been appointed in accordance herewith
with due care.
Section 8.03 No Responsibility For Recitals, Etc. The recitals
contained herein and in the Notes (except in the certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with this Indenture.
Section 8.04 Trustee, Authenticating Agent, Paying Agent Or Registrar
May Own Notes. The Trustee and any Authenticating Agent, paying agent or
registrar, in its individual or other capacity, may become the owner or pledgee
of Notes with the same rights it would have if it were not Trustee,
Authenticating Agent or paying agent.
Section 8.05 Moneys To Be Held In Trust. Subject to Section 4.04
hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law. The Trustee may allow and credit to the Company interest on any money
received hereunder at such rate, if any, as may be agreed upon by the Company
and the Trustee from time to time as may be permitted by law.
Section 8.06 Compensation And Expenses Of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
law in regard to the compensation of a trustee of an express trust), and the
Company shall pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and agents, including any
Authenticating Agents, and of all persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or expense incurred without
49
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim or liability. The
obligations of the Company under this Section 8.06 to compensate the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Notes upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the benefit
of the Holders of any particular Notes.
Section 8.07 Officers' Certificate As Evidence. Whenever in the
administration of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to the taking, suffering
or omitting of any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee, and
such Officers' Certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under this Indenture in reliance thereon.
Section 8.08 Conflicting Interest Of Trustee. The Trustee shall be
subject to and shall comply with the provisions of Section 310(b) of the TIA.
Nothing in this Indenture shall be deemed to prohibit the Trustee or the Company
from making any application permitted pursuant to such section.
Section 8.09 Existence And Eligibility Of Trustee. There shall at all
times be a Trustee hereunder which Trustee shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia having a combined capital and surplus of
at least $50,000,000 and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal
or State authorities. Such corporation shall have its principal place of
business in the Borough of Manhattan, The City of New York, State of New York,
if there be such a corporation in such location willing to act upon reasonable
and customary terms and conditions. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid authority, then for the purposes of this Section 8.09, the combined
capital and surplus shall be deemed to be as set forth in its most recent report
of condition so published. No obligor upon the Notes or Person directly or
indirectly controlling, controlled by, or under common control with such obligor
shall
50
serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with this Section 8.09, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.10 hereof.
Section 8.10 Resignation Or Removal Of Trustee.
---------------------------------
(a) Pursuant to the provisions of this Article, the Trustee may at any
time resign and be discharged of the trusts created by this Indenture by giving
at least 30 days prior written notice to the Company specifying the day upon
which such resignation shall take effect, and such resignation shall take effect
immediately upon the later of the appointment of a successor trustee and such
day.
(b) Any Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in principal amount of the then
Outstanding Notes or by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is continuing, and
no event has occurred and is continuing that, with the giving of notice or the
lapse of time or both, would become an Event of Default, the Company may remove
any Trustee upon written notice to the Holder of each Note Outstanding and the
Trustee and appoint a successor Trustee meeting the requirements of Section
8.09. The Company or the successor Trustee shall give notice to the Holders, in
the manner provided in Section 14.10, of such removal and appointment within 30
days of such removal and appointment.
(d) If at any time (i) the Trustee shall cease to be eligible in
accordance with Section 8.09 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder
for at least six months, (ii) the Trustee shall fail to comply with Section 8.08
hereof after written request therefor by the Company or any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or 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 the Trustee may be removed forthwith by an instrument or
concurrent instruments in writing filed with the Trustee and either:
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(1) signed by the Chairman, President or any Vice President
of the Company and attested by the Secretary or an Assistant Secretary
of the Company; or
(2) signed and acknowledged by the Holders of a majority in
principal amount of Outstanding Notes or by their attorneys in fact
duly authorized.
(e) Any resignation or removal of the Trustee shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.12 hereof.
Section 8.11 Appointment Of Successor Trustee.
--------------------------------
(a) If at any time the Trustee shall resign or be removed, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment of a
successor Trustee to the Holder of each Note Outstanding following any such
appointment.
(c) If no appointment of a successor Trustee shall be made pursuant to
Section 8.11(a) hereof within 60 days after appointment shall be required, any
Noteholder or the resigning Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. Said court may thereupon after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
(d) Any Trustee appointed under this Section 8.11 as a successor
Trustee shall be a bank or trust company eligible under Section 8.09 hereof and
qualified under Section 8.08 hereof.
Section 8.12 Acceptance By Successor Trustee.
-------------------------------
(a) Any successor Trustee appointed as provided in Section 8.11 hereof
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to Section 8.06 hereof, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act. Upon request of any
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such successor Trustee, the Company shall execute any and all instruments in
writing in order more fully and certainly to vest in and confirm to such
successor Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
Trustee to secure any amounts then due it pursuant to Section 8.06 hereof.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.12 unless at the time of such acceptance such successor Trustee shall
be qualified under Section 8.08 hereof and eligible under Section 8.09 hereof.
(c) Upon acceptance of appointment by a successor Trustee as provided
in this Section 8.12, the successor Trustee shall mail notice of its succession
hereunder to all Holders of Notes as the names and addresses of such Holders
appear on the registry books.
Section 8.13 Succession By Merger, Etc.
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(a) Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such corporation shall be otherwise qualified and
eligible under this Article.
(b) If at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificates
of the Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
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Section 8.14 Limitations On Rights Of Trustee As A Creditor. The
Trustee shall be subject to, and shall comply with, the provisions of Section
311 of the TIA.
Section 8.15 Authenticating Agent.
--------------------
(a) There may be one or more Authenticating Agents appointed by the
Trustee with the written consent of the Company, with power to act on its behalf
and subject to the direction of the Trustee in the authentication and delivery
of Notes in connection with transfers and exchanges under Sections 2.06, 2.07,
2.08, 2.13, 3.03, and 12.04 hereof, as fully to all intents and purposes as
though such Authenticating Agents had been expressly authorized by those
Sections to authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by any Authenticating Agent pursuant to
this Section 8.15 shall be deemed to be the authentication and delivery of such
Notes "by the Trustee." Any such Authenticating Agent shall be a bank or trust
company or other Person of the character and qualifications set forth in Section
8.09 hereof.
(b) Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 8.15, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 8.15, the
Trustee may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice of such
appointment to the Company and shall mail, in the manner provided in Section
14.10, notice of such appointment to the Holders of Notes.
(d) The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payments, in accordance with Section 8.06 hereof.
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(e) Sections 8.02, 8.03, 8.06, 8.07 and 8.09 hereof shall be applicable
to any Authenticating Agent.
ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.01 Action By Noteholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Notes may take any action, the fact that at the time of taking any
such action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Noteholders in person or by agent or proxy appointed in
writing, (b) by the record of such Noteholders voting in favor thereof at any
meeting of Noteholders duly called and held in accordance with Article X hereof,
or (c) by a combination of such instrument or instruments and any such record of
such a meeting of Noteholders.
Section 9.02 Proof Of Execution By Noteholders.
---------------------------------
(a) Subject to Sections 8.01, 8.02 and 10.05 hereof, proof of the
execution of any instruments by a Noteholder or the agent or proxy for such
Noteholder shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be satisfactory to the Trustee. The ownership of Notes shall be proved by the
register for the Notes maintained by the Trustee.
(b) The record of any Noteholders' meeting shall be proven in the
manner provided in Section 10.06 hereof.
Section 9.03 Persons Deemed Absolute Owners. Subject to Sections
2.04(f) and 9.01 hereof, the Company, the Trustee, any paying agent and any
Authenticating Agent shall deem the person in whose name any Note shall be
registered upon the register for the Notes to be, and shall treat such person
as, the absolute owner of such Note (whether or not such Note shall be overdue)
for the purpose of receiving payment of or on account of the principal and
premium, if any, and interest on such Note, and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Authenticating
Agent shall be affected by any notice to the contrary. All such payments shall
be valid and effectual to satisfy and discharge the liability upon any such Note
to the extent of the sum or sums so paid.
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Section 9.04 Company-Owned Notes Disregarded. In determining whether
the Holders of the requisite aggregate principal amount of Outstanding Notes
have concurred in any direction, consent or waiver under this Indenture, Notes
which are owned by the Company or any other obligor on the Notes or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Notes shall
be disregarded and deemed not to be Outstanding for the purpose of any such
determination; provided that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Notes which the Trustee knows are so owned shall be so disregarded. Notes
so owned which have been pledged in good faith to third parties may be regarded
as Outstanding for the purposes of this Section 9.04 if the pledgee shall
establish the pledgee's right to take action with respect to such Notes and that
the pledgee is not a Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, the Trustee may rely upon an
Opinion of Counsel and an Officers' Certificate to establish the foregoing.
Section 9.05 Revocation Of Consents; Future Holders Bound. Except as
may be otherwise required in the case of a Global Note by the applicable rules
and regulations of the Depositary, at any time prior to the taking of any action
by the Holders of the percentage in aggregate principal amount of the Notes
specified in this Indenture in connection with such action, any Holder of a
Note, which has been included in the Notes the Holders of which have consented
to such action may, by filing written notice with the Trustee at the Corporate
Trust Office of the Trustee and upon proof of ownership as provided in Section
9.02(a) hereof, revoke such action so far as it concerns such Note. Except as
aforesaid, any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note
and of any Notes issued in exchange, substitution or upon registration of
transfer therefor, irrespective of whether or not any notation thereof is made
upon such Note or such other Notes.
Section 9.06 Record Date For Noteholder Acts. If the Company shall
solicit from the Noteholders any request, demand, authorization, direction,
notice, consent, waiver or other act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of Noteholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other act may be given before or after the record
date,
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but only the Noteholders of record at the close of business on the record date
shall be deemed to be Noteholders for the purpose of determining whether Holders
of the requisite aggregate principal amount of Outstanding Notes have authorized
or agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other act, and for that purpose the Outstanding Notes
shall be computed as of the record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other act by the
Noteholders on the record date shall be deemed effective unless it shall become
effective pursuant to this Indenture not later than six months after the record
date. Any such record date shall be at least 30 days prior to the date of the
solicitation to the Noteholders by the Company.
ARTICLE X
NOTEHOLDERS' MEETING
Section 10.01 Purposes Of Meetings. A meeting of Noteholders may be
called at any time and from time to time pursuant to this Article X for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Noteholders pursuant to Article XII;
(b) to remove the Trustee pursuant to Article VIII;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 12.02 hereof; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Notes, as the
case may be, under any other provision of this Indenture or under applicable
law.
Section 10.02 Call Of Meetings By Trustee. The Trustee may at any time
call a meeting of Holders of Notes to take any action specified in Section 10.01
hereof, to be held at such time and at such place as the Trustee shall
determine. Notice of every such meeting of Noteholders, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given to Holders of the Notes that may be
affected by the action proposed to be taken at such meeting in the manner
provided in Section 14.10 hereof. Such notice shall be
57
given not less than 20 nor more than 90 days prior to the date fixed for such
meeting.
Section 10.03 Call Of Meetings By Company Or Noteholders. If at any
time the Company, pursuant to a Board Resolution, or the Holders of at least 10%
in aggregate principal amount of the Notes then Outstanding, shall have
requested the Trustee to call a meeting of Noteholders, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such Noteholders may
determine the time and the place for such meeting and may call such meeting to
take any action authorized in Section 10.01 hereof, by giving notice thereof as
provided in Section 10.02 hereof.
Section 10.04 Qualifications For Voting. To be entitled to vote at any
meetings of Noteholders a Person shall (a) be a Holder of one or more Notes
affected by the action proposed to be taken or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more such Notes. The only
Persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives (including employees) of the Trustee and its
counsel and any representatives (including employees) of the Company and its
counsel.
Section 10.05 Regulations.
------------
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Noteholders in regard to proof of the holding of Notes and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Noteholders as provided in Section 10.03 hereof, in which case
the Company or Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by the Holders of a majority in
aggregate principal amount of the Notes present in person or by proxy at the
meeting.
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(c) Subject to Section 9.04 hereof, at any meeting each Noteholder or
proxy shall be entitled to one vote for each $1,000 principal amount of Notes
held or represented by such Noteholder; provided that no vote shall be cast or
counted at any meeting in respect of any Note determined to be not Outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by such chairman or instruments in writing as aforesaid duly
designating such chairman as the Person to vote on behalf of other Noteholders.
At any meeting of Noteholders duly called pursuant to Section 10.02 or 10.03
hereof, the presence of Persons holding or representing Notes in an aggregate
principal amount sufficient to take action on any business for the transaction
for which such meeting was called shall constitute a quorum. Any meeting of
Noteholders duly called pursuant to Section 10.02 or 10.03 hereof may be
adjourned from time to time by the Holders of a majority in aggregate principal
amount of the Notes present in person or by proxy at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 10.06 Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballots on which shall be subscribed
the signatures of the Holders of Notes or of their representatives by proxy and
the principal amount of Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of such meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 10.02 hereof. The record shall show the aggregate principal amount of
the Notes voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee and the Trustee shall have
the ballots taken at the meeting attached to such duplicate. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
Section 10.07 Rights Of Trustee Or Noteholders Not Delayed. Nothing in
this Article X shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Noteholders or any rights expressly or impliedly
conferred
59
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to the Holders of Notes
under any of the provisions of this Indenture or of the Notes.
ARTICLE XI
CONSOLIDATION, MERGER, SALE,
TRANSFER OR CONVEYANCE
Section 11.01 Company May Consolidate, Etc. Only On Certain Terms. The
Company shall not consolidate with or merge into any other corporation or entity
or sell, or otherwise dispose of its properties as or substantially as an
entirety to any Person unless the Company has delivered to the Trustee the
supplemental indenture referred to in (b) below and an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger, conveyance
or transfer and such supplemental indenture comply with this Article XI and that
all conditions precedent herein provided for have been complied with, and the
corporation formed by such consolidation or into which the Company is merged or
the Person which receives such properties pursuant to such sale, transfer or
other disposition (a) shall be a corporation or other entity organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia; and (b) 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 of the Notes and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed.
Anything in this Indenture to the contrary notwithstanding, the
conveyance or other transfer by the Company of (a) all or any portion of its
facilities for the generation of electric energy, or (b) all of its facilities
for the transmission of electric energy, in each case considered alone or in any
combination with properties described in any other clause, shall in no event be
deemed to constitute a conveyance or other transfer of all the properties of the
Company, as or substantially as an entirety. The character of particular
facilities shall be determined in accordance with the Uniform System of Accounts
prescribed for public utilities and licensees subject to the Federal Power Act,
as amended, to the extent applicable.
Section 11.02 Successor Corporation Substituted. Upon any consolidation
---------------------------------
or merger, or any sale, transfer or other disposition of the properties of the
Company substantially as an entirety in accordance with Section 11.01 hereof,
the successor
60
corporation formed by such consolidation or into which the Company is merged or
to which such sale, transfer or other disposition 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 corporation had been
named as the Company herein and the Company shall be released from all
obligations hereunder.
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 12.01 Supplemental Indentures Without Consent Of Noteholders.
------------------------------------------------------
(a) The Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or questions
arising under this Indenture as may be necessary or desirable, and not
inconsistent with this Indenture or prejudicial to the interests of the
Holders in any material respect, for the purpose of supplying any
omission, curing any ambiguity, or curing, correcting or supplementing
any defective or inconsistent provision;
(2) 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 Note Outstanding created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision or such change or elimination is applicable
only to Notes issued after the effective date of such change or
elimination;
(3) to establish the form of Notes as permitted by Section
2.01 hereof or to establish or reflect any terms of any Note determined
pursuant to Section 2.05 hereof;
(4) to evidence the succession of another corporation to the
Company as permitted hereunder, and the assumption by any such
successor of the covenants of the Company herein and in the Notes;
(5) to grant to or confer upon the Trustee for the benefit of
the Holders any additional rights, remedies, powers or authority;
61
(6) to permit the Trustee to comply with any duties imposed
upon it by law;
(7) to specify further the duties and responsibilities of, and
to define further the relationships among the Trustee, any
Authenticating Agent and any paying agent;
(8) to add to the covenants of the Company for the benefit of
the Holders of one or more series of Notes, to add to the security for
the Notes, to surrender a right or power conferred on the Company
herein or to add any Event of Default with respect to one or more
series of Notes;
(9) to comply with the Company's obligations under Section
5.06; and
(10) to make any other change that is not prejudicial to the
Holders in any material respect.
(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
(c) Any supplemental indenture authorized by this Section 12.01 may be
executed by the Company and the Trustee without the consent of the Holders of
any of the Notes at the time Outstanding, notwithstanding any of the provisions
of Section 12.02 hereof.
Section 12.02 Supplemental Indentures With Consent Of Noteholders.
----------------------------------------------------
(a) With the consent (evidenced as provided in Section 9.01 hereof) of
the Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding, the Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Noteholders; provided that no such supplemental indenture shall:
62
(1) change the maturity date of any Note, or reduce the rate
(or change the method of calculation thereof) or extend the time of
payment of interest thereon, or reduce the principal amount thereof or
any premium thereon, or change the coin or currency in which the
principal of any Note or any premium or interest thereon is payable, or
change the date on which any Note may be redeemed or adversely affect
the rights of the Noteholders to institute suit for the enforcement of
any payment of principal of or any premium or interest on any Note; or
(2) modify this Section 12.02(a) or reduce the aforesaid
percentage of Notes, the Holders of which are required to consent to
any such supplemental indenture or to reduce the percentage of Notes,
the Holders of which are required to waive Events of Default, in each
case, without the consent of the Holders of all of the Notes then
Outstanding.
(b) Upon the request of the Company, accompanied by a copy of the Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
(c) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture (or any supplemental indenture) which has
expressly been included solely for the benefit of one or more series of Notes,
or which modifies the rights of the Holders of Notes of such series with respect
to such covenant or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Notes of any other series.
(d) It shall not be necessary for the consent of the Holders of Notes
under this Section 12.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
(e) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Section 12.02, the Trustee shall give
notice in the manner provided in Section 14.10 hereof, setting forth in general
terms the substance of such supplemental indenture, to all Noteholders. Any
failure of the Trustee to give such notice or any defect therein
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shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
Section 12.03 Compliance With Trust Indenture Act; Effect Of
Supplemental Indentures. Any supplemental indenture executed pursuant to this
Article XII shall comply with the TIA. Upon the execution of any supplemental
indenture pursuant to this Article XII, the Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Noteholders shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 12.04 Notation On Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article XII
may 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 Notes
so modified as approved by the Trustee and the Board of Directors with respect
to any modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company, authenticated by the
Trustee and delivered in exchange for the Notes then Outstanding.
Section 12.05 Evidence Of Compliance Of Supplemental Indenture To Be
Furnished Trustee. The Trustee, subject to Sections 8.01 and 8.02 hereof, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article XII.
ARTICLE XIII
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01 Indenture And Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or any premium or interest on any
Note, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company,
contained in this Indenture or in any supplemental indenture, or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or
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future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Notes.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.01 Provisions Binding On Company's Successors. All the
covenants, stipulations, promises and agreements made by the Company in this
Indenture shall bind its successors and assigns whether so expressed or not.
Section 14.02 Official Acts By Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful successor of the
Company.
Section 14.03 Notices. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or
by the Noteholders on the Company may be given or served by being deposited
postage prepaid in a post office letter box addressed (until another address is
filed by the Company with the Trustee) at the principal executive offices of the
Company, to the attention of the Secretary. Any notice, direction, request or
demand by any Noteholder or the Company to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee, Attention: Corporate Trust
Department.
SECTION 14.04 GOVERNING LAW. THIS INDENTURE AND EACH NOTE SHALL BE
GOVERNED BY AND DEEMED TO BE A CONTRACT UNDER, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE, EXCEPT AS MAY OTHERWISE BE REQUIRED BY
MANDATORY PROVISIONS OF LAW.
Section 14.05 Evidence Of Compliance With Conditions Precedent.
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(a) Upon any application or demand by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates delivered pursuant
to Section 5.05 hereof) shall include (1) a statement that each Person making
such certificate or opinion has read such covenant or condition and the
definitions 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 Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with.
(c) 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.
(d) Any certificate or opinion of an 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 such certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel delivered under the
Indenture 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 person knows, or in the exercise of
reasonable care should know, that the certificate
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or opinion of representations with respect to such matters are erroneous. Any
opinion of counsel delivered hereunder may contain standard exceptions and
qualifications reasonably satisfactory to the Trustee.
(e) Any certificate, statement or opinion of any officer of the
Company, or of counsel, may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an independent
public accountant or firm of accountants, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which the certificate, statement or
opinion of such officer or counsel may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous. Any
certificate or opinion of any firm of independent public accountants filed with
the Trustee shall contain a statement that such firm is independent.
(f) 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 14.06 Business Days. Unless otherwise provided pursuant to
Section 2.05(c) hereof, in any case where the date of maturity of the principal
of or any premium or interest on any Note or the date fixed for redemption of
any Note is not a Business Day, then payment of such principal or any premium or
interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal or premium, if any, of the Note is required
to be paid.
Section 14.07 Trust Indenture Act To Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by the TIA, such required provision of the TIA shall govern.
Section 14.08 Table Of Contents, Headings, Etc. The table of contents
and the titles and headings of the articles and sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 14.09 Execution In Counterparts. This Indenture may be executed
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in any number of counterparts, each of which shall be
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an original, but such counterparts shall together constitute but one and the
same instrument.
Section 14.10 Manner Of Mailing Notice To Noteholders.
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(a) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or the Company to or
on the Holders of Notes, as the case may be, shall be given or served by
first-class mail, postage prepaid, addressed to the Holders of such Notes at
their last addresses as the same appear on the register for the Notes referred
to in Section 2.06, and any such notice shall be deemed to be given or served by
being deposited in a post office letter box in the form and manner provided in
this Section 14.10. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give notice to any
Holder by mail, then such notification to such Holder as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
(b) The Company shall also provide any notices required under this
Indenture by publication, but only to the extent that such publication is
required by the TIA, the rules and regulations of the Commission or any
securities exchange upon which any series of Notes is listed.
Section 14.11 Approval By Trustee Of Expert Or Counsel. Wherever the
Trustee is required to approve an Expert or counsel who is to furnish evidence
of compliance with conditions precedent in this Indenture, such approval by the
Trustee shall be deemed to have been given upon the taking of any action by the
Trustee pursuant to and in accordance with the certificate or opinion so
furnished by such Expert or counsel.
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IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective parties hereto as of
the date first above written.
PENNSYLVANIA ELECTRIC COMPANY
By: ---------------------------
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK
AS TRUSTEE
By: ---------------------------
Name:
Title:
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