Exhibit 4(a)
KENTUCKY POWER COMPANY
AND
BANKERS TRUST COMPANY,
AS TRUSTEE
--------------------
INDENTURE
Dated as of ____________, 1997
--------------------
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
- ------------------- ----------
310(a) . . . . . . . . . . . . . . . . . . . . . . 7.09
310(b) . . . . . . . . . . . . . . . . . . . . . . 7.08
. . . . . . . . . . . . . . . . . . . . . . 7.10
310(c) . . . . . . . . . . . . . . . . . . . . .Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . 7.13
311(b) . . . . . . . . . . . . . . . . . . . . . . 7.13
311(c) . . . . . . . . . . . . . . . . . . . . .Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . 5.01
. . . . . . . . . . . . . . . . . . . . . . 5.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . 5.02(c)
. . . . . . . . . . . . . . . . . . . . . . 5.02(d)
312(c) . . . . . . . . . . . . . . . . . . . . . . 5.02(e)
313(a) . . . . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b) . . . . . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . 5.04(a)
. . . . . . . . . . . . . . . . . . . . . . 5.04(b)
313(d) . . . . . . . . . . . . . . . . . . . . . . 5.04(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . 5.03
314(b) . . . . . . . . . . . . . . . . . . . . .Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . 13.06(a)
314(d) . . . . . . . . . . . . . . . . . . . . .Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . 13.06(b)
314(f) . . . . . . . . . . . . . . . . . . . . .Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
. . . . . . . . . . . . . . . . . . . . . . 7.02
315(b) . . . . . . . . . . . . . . . . . . . . . . 6.07
315(c) . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
315(e) . . . . . . . . . . . . . . . . . . . . . . 6.08
316(a) . . . . . . . . . . . . . . . . . . . . . . 6.06
. . . . . . . . . . . . . . . . . . . . . . 8.04
316(b) . . . . . . . . . . . . . . . . . . . . . . 6.04
316(c) . . . . . . . . . . . . . . . . . . . . . . 8.01
317(a) . . . . . . . . . . . . . . . . . . . . . . 6.02
317(b) . . . . . . . . . . . . . . . . . . . . . . 4.03
318(a) . . . . . . . . . . . . . . . . . . . . . . 13.08
TABLE OF CONTENTS
This Table of Contents does not constitute part of the
Indenture and should not have any bearing upon the
interpretation of any of its terms or provisions
RECITALS:
Purpose of Indenture. . . . . . . . . . . . . . . . . . . .1
Compliance with legal requirements. . . . . . . . . . . . .1
Purpose of and consideration for Indenture. . . . . . . . .1
ARTICLE ONE - DEFINITIONS
Section 1.01
Certain terms defined, other terms defined in the
Trust Indenture Act of 1939, as amended, or by
reference therein in the Securities Act of 1933, as
amended, to have the meanings assigned therein
Affiliate . . . . . . . . . . . . . . . . . . . .2
Authenticating Agent. . . . . . . . . . . . . . .2
Authorized Officer. . . . . . . . . . . . . . . .2
Board of Directors. . . . . . . . . . . . . . . .3
Board Resolution. . . . . . . . . . . . . . . . .3
Business Day. . . . . . . . . . . . . . . . . . .3
Certificate . . . . . . . . . . . . . . . . . . .3
Commission. . . . . . . . . . . . . . . . . . . .3
Company . . . . . . . . . . . . . . . . . . . . .3
Company Order . . . . . . . . . . . . . . . . . .3
Corporate Trust Office. . . . . . . . . . . . . .4
Default . . . . . . . . . . . . . . . . . . . . .4
Depository. . . . . . . . . . . . . . . . . . . .4
Discount Security . . . . . . . . . . . . . . . .4
Dollar. . . . . . . . . . . . . . . . . . . . . .4
Eligible Obligations. . . . . . . . . . . . . . .4
Event of Default. . . . . . . . . . . . . . . . .4
Global Security . . . . . . . . . . . . . . . . .5
Governmental Obligations. . . . . . . . . . . . .5
Governmental Authority. . . . . . . . . . . . . .5
Indenture . . . . . . . . . . . . . . . . . . . .5
Instructions. . . . . . . . . . . . . . . . . . .6
Interest . . . . . . . . . . . . . . . . . . . .6
Interest Payment Date . . . . . . . . . . . . . .6
Officers' Certificate . . . . . . . . . . . . . .6
Opinion of Counsel. . . . . . . . . . . . . . . .6
Outstanding . . . . . . . . . . . . . . . . . . .6
Periodic Offering . . . . . . . . . . . . . . . .7
Person. . . . . . . . . . . . . . . . . . . . . .7
Place of Payment. . . . . . . . . . . . . . . . .7
Predecessor Security. . . . . . . . . . . . . . .7
Responsible Officer . . . . . . . . . . . . . . .7
Security. . . . . . . . . . . . . . . . . . . . .8
Securityholder. . . . . . . . . . . . . . . . . .8
Series. . . . . . . . . . . . . . . . . . . . . .8
Tranche . . . . . . . . . . . . . . . . . . . . .8
Trustee . . . . . . . . . . . . . . . . . . . . .8
Trust Indenture Act . . . . . . . . . . . . . . .8
United States . . . . . . . . . . . . . . . . . .9
ARTICLE TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01
Designation, terms, amount, authentication
and delivery of Securities . . . . . . . . . . . . . .9
Section 2.02
Form of Security and Trustee's certificate . . . . . 10
Section 2.03
Date and denominations of Securities, and
provisions for payment of principal,
premium and interest . . . . . . . . . . . . . . . . 11
Section 2.04
Execution of Securities. . . . . . . . . . . . . . . 13
Section 2.05
Exchange of Securities . . . . . . . . . . . . . . . 15
(a) Registration and transfer of Securities . . . . 15
(b) Security Register; Securities to be accom-
panied by proper instruments of transfer. . . . 15
(c) Charges upon exchange, transfer or
registration of Securities. . . . . . . . . . . 15
(d) Restrictions on transfer or exchange
at time of redemption . . . . . . . . . . . . . 16
Section 2.06
Temporary Securities . . . . . . . . . . . . . . . . 16
Section 2.07
Mutilated, destroyed, lost or stolen Securities. . . 16
Section 2.08
Cancellation of surrendered Securities . . . . . . . 17
Section 2.09
Provisions of Indenture and Securities for sole
benefit of parties and Securityholders . . . . . . . 18
Section 2.10
Appointment of Authenticating Agent. . . . . . . . . 18
Section 2.11
Global Security. . . . . . . . . . . . . . . . . . . 19
(a) Authentication and Delivery; Legend . . . . . . 19
(b) Transfer of Global Security . . . . . . . . . . 19
(c) Issuance of Securities in Definitive Form . . . 19
Section 2.12
Payment in Proper Currency . . . . . . . . . . . . . 20
Section 2.13
Identification of Securities . . . . . . . . . . . . 20
ARTICLE THREE - REDEMPTION OF SECURITIES AND
SINKING FUND PROVISIONS
Section 3.01
Redemption of Securities . . . . . . . . . . . . . . 20
Section 3.02
(a) Notice of redemption. . . . . . . . . . . . . . 21
(b) Selection of Securities in case less than
all Securities to be redeemed . . . . . . . . . 22
Section 3.03
(a) When Securities called for redemption
become due and payable. . . . . . . . . . . . . 22
(b) Receipt of new Security upon partial payment. . 23
Section 3.04
Sinking Fund for Securities. . . . . . . . . . . . . 23
Section 3.05
Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . 23
Section 3.06
Redemption of Securities for Sinking Fund. . . . . . 23
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Payment of principal (and premium if any)
and interest on Securities . . . . . . . . . . . . . 24
Section 4.02
Maintenance of office or agency for payment of
Securities, designation of office or agency for
payment, registration, transfer and exchange
of Securities. . . . . . . . . . . . . . . . . . . . 24
Section 4.03
(a) Duties of paying agent. . . . . . . . . . . . . 25
(b) Company as paying agent . . . . . . . . . . . . 25
(c) Holding sums in trust . . . . . . . . . . . . . 26
Section 4.04
Appointment to fill vacancy in office of Trustee . . 26
Section 4.05
Restriction on consolidation, merger or sale . . . . 26
ARTICLE FIVE - SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to furnish Trustee information as to
names and addresses of Securityholders . . . . . . . 26
Section 5.02
(a) Trustee to preserve information as to
names and addresses of Securityholders
received by it in capacity of paying agent. . . 26
(b) Trustee may destroy list of Security-
holders on certain conditions . . . . . . . . . 27
(c) Trustee to make information as to names
and addresses of Securityholders available
to "applicants" to mail communications to
Securityholders in certain circumstances. . . . 27
(d) Procedure if Trustee elects not to make
information available to applicants . . . . . . 27
(e) Company and Trustee not accountable
for disclosure of information . . . . . . . . . 28
Section 5.03
(a) Annual and other reports to be filed by
Company with Trustee. . . . . . . . . . . . . . 28
(b) Additional information and reports to be
filed with Trustee and Securities and
Exchange Commission . . . . . . . . . . . . . . 28
(c) Summaries of information and reports to be
transmitted by Company to Securityholders . . . 29
(d) Annual Certificate to be furnished
to Trustee. . . . . . . . . . . . . . . . . . . 29
(e) Effect of Delivery to Trustee . . . . . . . . . 29
Section 5.04
(a) Trustee to transmit annual report
to Securityholders. . . . . . . . . . . . . . . 29
(b) Trustee to transmit certain further
reports to Securityholders. . . . . . . . . . . 30
(c) Copies of reports to be filed with
stock exchanges and Securities and
Exchange Commission . . . . . . . . . . . . . . 31
ARTICLE SIX - REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01
(a) Events of default defined . . . . . . . . . . . 31
(b) Acceleration of maturity upon
Event of Default. . . . . . . . . . . . . . . . 32
(c) Waiver of default and rescission of
declaration of maturity . . . . . . . . . . . . 32
(d) Restoration of former position and
rights upon curing default. . . . . . . . . . . 33
Section 6.02
(a) Covenant of Company to pay to Trustee
whole amount due on Securities on default
in payment of interest or principal
(and premium, if any) . . . . . . . . . . . . . 33
(b) Trustee may recover judgment for whole
amount due on Securities on failure of
Company to pay. . . . . . . . . . . . . . . . . 33
(c) Billing of proof of claim by Trustee in
bankruptcy, reorganization or receivership
proceeding. . . . . . . . . . . . . . . . . . . 34
(d) Rights of action and of asserting claims
may be enforced by Trustee without
possession of Securities. . . . . . . . . . . . 34
Section 6.03
Application of monies collected by Trustee . . . . . 35
Section 6.04
Limitation on suits by holders of Securities . . . . 35
Section 6.05
(a) Remedies Cumulative . . . . . . . . . . . . . . 36
(b) Delay or omission in exercise of rights
not waiver of default . . . . . . . . . . . . . 36
Section 6.06
Rights of holders of majority in principal
amount of Securities to direct trustee and
to waive defaults. . . . . . . . . . . . . . . . . . 36
Section 6.07
Trustees to give notice of defaults known to
it, but may withhold in certain circumstances. . . . 37
Section 6.08
Requirements of an undertaking to pay costs
in certain suits under Indenture or against
Trustee. . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SEVEN - CONCERNING THE TRUSTEE
Section 7.01
(a) Upon Event of Default occurring and
continuing, Trustee shall exercise powers
vested in it, and use same degree of care
and skill in their exercise, as prudent
individual will use . . . . . . . . . . . . . . 38
(b) Trustee not relieved from liability for
negligence or willful misconduct except
as provided in this section . . . . . . . . . . 39
(1) Prior to Event of Default and
after the curing of all Events of
Default which may have occurred
(i) Trustee not liable except for
performance of duties specifically
set forth
(ii) In absence of bad faith, Trustee
may conclusively rely on
certificates or opinions furnished
it hereunder,subject to duty to
examine the same if specifically
required to be furnished to it
(2) Trustee not liable for error of judgment made
in good faith by Responsible Officer unless
Trustee negligent
(3) Trustee not liable for action or non-action
in accordance with direction of holders of
majority in principal amount of Securities
(4) Trustee need not expend own funds without
adequate indemnity
Section 7.02
Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or presented. . . . 40
(b) Sufficient evidence by certain
instruments provided for. . . . . . . . . . . . 40
(c) Trustee may consult with counsel and act
on advice or Opinion of Counsel . . . . . . . . 40
(d) Trustee may require indemnity from
Securityholders . . . . . . . . . . . . . . . . 40
(e) Trustee not liable for actions in good
faith believed to be authorized . . . . . . . . 41
(f) Trustee not bound to investigate facts or
matters stated in certificates, etc. unless
requested in writing by Securityholders . . . . 41
(g) Trustee may perform duties directly or
through agents or attorneys . . . . . . . . . . 41
(h) Permissive rights of Trustee. . . . . . . . . . 41
Section 7.03
(a) Trustee not liable for recitals in
Indenture or in Securities. . . . . . . . . . . 41
(b) No representations by Trustee as to
validity or Indenture or of Securities. . . . . 41
(c) Trustee not accountable for use of
Securities or proceeds. . . . . . . . . . . . . 41
Section 7.04
Trustee, paying agent or Security
Registrar may own Security . . . . . . . . . . . . . 42
Section 7.05
Monies received by Trustee to be held
in Trust without interest. . . . . . . . . . . . . . 42
Section 7.06
(a) Trustee entitled to compensation,
reimbursement and indemnity . . . . . . . . . . 42
(b) Obligations to Trustee to be secured by
lien prior to Securities. . . . . . . . . . . . 42
(c) Nature of Expenses. . . . . . . . . . . . . . . 43
(d) Survival of Obligations . . . . . . . . . . . . 43
Section 7.07
Right of Trustee to rely on certificate
of officers of Company where no other
evidence specifically prescribed . . . . . . . . . . 43
Section 7.08
Trustee acquiring conflicting interest
to eliminate conflict or resign. . . . . . . . . . . 43
Section 7.09
Requirements for eligibility of trustee. . . . . . . 43
Section 7.10
(a) Resignation of Trustee and appointment
of successor. . . . . . . . . . . . . . . . . . 44
(b) Removal of Trustee by Company or by
court on Securityholders' application . . . . . 45
(c) Removal of Trustee by holders of majority
in principal amount of Securities . . . . . . . 45
(d) Time when resignation or removal
of Trustee effective. . . . . . . . . . . . . . 45
(e) One Trustee for each series . . . . . . . . . . 45
Section 7.11
(a) Acceptance by successor Trustee . . . . . . . . 45
(b) Trustee with respect to less than all series. . 45
(c) Company to confirm Trustee's rights . . . . . . 46
(d) Successor Trustee to be qualified . . . . . . . 46
(e) Notice of succession. . . . . . . . . . . . . . 46
Section 7.12
Successor to Trustee by merger, consolidation
of succession to business. . . . . . . . . . . . . . 47
Section 7.13
Limitations on rights of Trustee as a creditor
to obtain payment of certain claims. . . . . . . . . 47
ARTICLE EIGHT - CONCERNING THE SECURITYHOLDERS
Section 8.01
Evidence of action by Securityholders. . . . . . . . 47
Section 8.02
Proof of execution of instruments and of
holding of Securities. . . . . . . . . . . . . . . . 48
Section 8.03
Who may be deemed owners of Securities . . . . . . . 48
Section 8.04
Securities owned by Company or controlled
or controlling companies disregarded for
certain purposes . . . . . . . . . . . . . . . . . . 48
Section 8.05
Instruments executed by Securityholders
bind future holders. . . . . . . . . . . . . . . . . 49
ARTICLE NINE - SUPPLEMENTAL INDENTURES
Section 9.01
Purposes for which supplemental indenture may be
entered into without consent of Securityholders. . . 49
Section 9.02
Modification of Indenture with consent of
Securityholders. . . . . . . . . . . . . . . . . . . 52
Section 9.03
Effect of supplemental indentures. . . . . . . . . . 53
Section 9.04
Securities may bear notation of changes
by supplemental indentures . . . . . . . . . . . . . 54
Section 9.05
Opinion of Counsel . . . . . . . . . . . . . . . . . 54
ARTICLE TEN - CONSOLIDATION, MERGER AND SALE
Section 10.01
Consolidations or mergers of Company and sales
or conveyances of property of Company permitted. . . 54
Section 10.02
(a) Rights and duties of successor company. . . . . 55
(b) Appropriate changes may be made in
phraseology and form of Securities. . . . . . . 55
(c) Company may consolidate or merge into itself
or acquire properties of other corporations . . 55
Section 10.03
Opinion of Counsel . . . . . . . . . . . . . . . . . 56
ARTICLE ELEVEN - DEFEASANCE AND CONDITIONS TO DEFEASANCE;
UNCLAIMED MONIES
Section 11.01
Defeasance and conditions to defeasance. . . . . . . 56
Section 11.02
Application by Trustee of funds deposited
for payment of Securities. . . . . . . . . . . . . . 57
Section 11.03
Repayment of monies held by paying agent . . . . . . 57
Section 11.04
Repayment of monies held by Trustee. . . . . . . . . 58
Section 11.05
Delivery of Officer's Certificate and Opinion
of Counsel . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE TWELVE - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01
Incorporators, Stockholders, officers and
directors of Company exempt from individual
liability. . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE THIRTEEN - MISCELLANEOUS PROVISIONS
Section 13.01
Successors and assigns of Company bound
by Indenture . . . . . . . . . . . . . . . . . . . . 59
Section 13.02
Acts of board, committee or officer of
successor company valid. . . . . . . . . . . . . . . 59
Section 13.03
Surrender of powers by Company . . . . . . . . . . . 59
Section 13.04
Required notices or demands may by served
by mail. . . . . . . . . . . . . . . . . . . . . . . 59
Section 13.05
Indenture and Securities to be construed in
accordance with laws of the State of New York. . . . 59
Section 13.06
(a) Officers' Certificate and Opinion of
Counsel to be furnished upon applications
or demands by company . . . . . . . . . . . . . 60
(b) Statements to be included in each
certificate or opinion with respect
to compliance with condition or covenant. . . . 60
Section 13.07
Payments due on non-Business Days. . . . . . . . . . 60
Section 13.08
Provisions required by Trust Indenture
Act of 1939 to control . . . . . . . . . . . . . . . 60
Section 13.09
Indenture may be executed in counterparts. . . . . . 60
Section 13.10
Separability of Indenture provisions . . . . . . . . 60
Section 13.11
Assignment by Company to subsidiary. . . . . . . . . 61
Section 13.12
Headings . . . . . . . . . . . . . . . . . . . . . . 61
Section 13.13
Securities in Foreign Currencies . . . . . . . . . . 61
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . . 62
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . 62
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . 62
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . 63
THIS INDENTURE, dated as of the ___ day of September, 1997,
between KENTUCKY POWER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Kentucky
(hereinafter sometimes referred to as the "Company"), and BANKERS
TRUST COMPANY, a corporation of the State of New York, as trustee
(hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to
provide for the issuance of unsecured promissory notes or other
evidences of indebtedness (hereinafter referred to as the
"Securities"), in an unlimited aggregate principal amount to be
issued from time to time in one or more series as in this
Indenture provided, as registered Securities without coupons, to
be authenticated by the certificate of the Trustee, and which
will rank pari passu with all other unsecured and unsubordinated
debt of the Company;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture;
WHEREAS, the Securities and the certificate of
authentication to be borne by the Securities (the "Certificate of
Authentication") are to be substantially in such forms as may be
approved by a Company Order (as defined below), or set forth in
this Indenture or in any indenture supplemental to this
Indenture;
AND WHEREAS, all acts and things necessary to make the
Securities issued pursuant hereto, when executed by the Company
and authenticated and delivered by the Trustee as in this
Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute these presents a valid indenture
and agreement according to its terms, have been done and
performed or will be done and performed prior to the issuance of
such Securities, and the execution of this Indenture has been and
the issuance hereunder of the Securities has been or will be
prior to issuance in all respects duly authorized, and the
Company, in the exercise of the legal right and power in it
vested, executes this Indenture and proposes to make, execute,
issue and deliver the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises, of the purchase
and acceptance of the Securities by the holders thereof and of
the sum of one dollar ($1.00) to it duly paid by the Trustee at
the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee,
for the equal and proportionate benefit (subject to the
provisions of this Indenture) of the respective holders from time
to time of the Securities, without any discrimination, preference
or priority of any one Security over any other by reason of
priority in the time of issue, sale or negotiation thereof, or
otherwise, except as provided herein, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. The terms defined in this Section (except as
in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture,
any Company Order, any Board Resolution, and any indenture
supplemental hereto shall have the respective meanings specified
in this Section. All other terms used in this Indenture which
are defined in the Trust Indenture Act of 1939, as amended, or
which are by reference in such Act defined in the Securities Act
of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in said Trust Indenture Act
and in said Securities Act as in force at the date of the
execution of this instrument.
Affiliate:
The term "Affiliate" of the Company shall mean any company at
least a majority of whose outstanding voting stock shall at the
time be owned by the Company, or by one or more direct or
indirect subsidiaries of or by the Company and one or more direct
or indirect subsidiaries of the Company. For the purposes only
of this definition of the term "Affiliate", the term "voting
stock", as applied to the stock of any company, shall mean stock
of any class or classes having ordinary voting power for the
election of a majority of the directors of such company, other
than stock having such power only by reason of the occurrence of
a contingency.
Authenticating Agent:
The term "Authenticating Agent" shall mean an authenticating
agent with respect to all or any of the series of Securities, as
the case may be, appointed with respect to all or any series of
the Securities, as the case may be, by the Trustee pursuant to
Section 2.10.
Authorized Officer:
The term "Authorized Officer" shall mean the Chairman of the
Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer or any other officer or agent of the Company
duly authorized by the Board of Directors to act in respect of
matters relating to this Indenture.
Board of Directors or Board:
The term "Board of Directors" or "Board" shall mean the Board of
Directors of the Company, or any duly authorized committee of
such Board.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification.
Business Day:
The term "Business Day", with respect to any Security, shall mean
any day that (a) in the Place of Payment (or in any of the Places
of Payment, if more than one) in which amounts are payable as
specified in the form of such Security and (b) in the city in
which the Trustee administers its corporate trust business, is
not a day on which banking institutions are authorized or
required by law or regulation to close.
Certificate:
The term "Certificate" shall mean a certificate signed by an
Authorized Officer. The Certificate need not comply with the
provisions of Section 13.06.
Commission:
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
or if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any,
performing such duties on such date.
Company:
The term "Company" shall mean Kentucky Power Company, a
corporation duly organized and existing under the laws of
Kentucky, and, subject to the provisions of Article Ten, shall
also include its successors and assigns.
Company Order:
The term "Company Order" shall mean a written order signed in the
name of the Company by an Authorized Officer and the Secretary or
an Assistant Secretary of the Company, pursuant to a Board
Resolution establishing a series of Securities.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution of this Indenture is located at Four Albany
Street, New York, New York.
Default:
The term "Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an Event
of Default.
Depository:
The term "Depository" shall mean, with respect to Securities of
any series, for which the Company shall determine that such
Securities will be issued as a Global Security, The Depository
Trust Company, New York, New York, another clearing agency, or
any successor registered as a clearing agency under the Exchange
Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either
Section 2.01 or 2.11.
Discount Security:
The term "Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.01(b).
Dollar:
The term "Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
Eligible Obligations:
The term "Eligible Obligations" means (a) with respect to
Securities denominated in Dollars, Governmental Obligations; or
(b) with respect to Securities denominated in a currency other
than Dollars or in a composite currency, such other obligations
or instruments as shall be specified with respect to such
Securities, as contemplated by Section 2.01.
Event of Default:
The term "Event of Default" with respect to Securities of a
particular series shall mean any event specified in Section 6.01,
continued for the period of time, if any, therein designated.
Global Security:
The term "Global Security" shall mean, with respect to any series
of Securities, a Security executed by the Company and
authenticated and delivered by the Trustee to the Depository or
pursuant to the Depository's instruction, all in accordance with
the Indenture, which shall be registered in the name of the
Depository or its nominee.
Governmental Authority:
The term "Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any department,
agency, authority or other instrumentality of any of the
foregoing.
Governmental Obligations:
The term "Governmental Obligations" shall mean securities that
are (i) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the
account of the holder of such depository receipt; provided that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depository receipt from any amount received by such custodian in
respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced
by such depository receipt.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as
so amended or supplemented, and shall include the terms of a
particular series of Securities established as contemplated by
Section 2.01.
Instructions:
The term "Instructions" shall mean instructions acceptable to the
Trustee issued pursuant to a Company Order in connection with a
Periodic Offering and signed by an Authorized Officer.
Instructions need not comply with the provisions of Section
13.06.
Interest:
The term "interest" when used with respect to non-interest
bearing Securities shall mean interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or
otherwise) or after the date, if any, on which the Company
becomes obligated to acquire a Security, whether by purchase or
otherwise.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any
installment of interest on a Security of a particular series
shall mean the date specified in such Security or in a Board
Resolution, Company Order or an indenture supplemental hereto
with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series
is due and payable.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed
by an Authorized Officer and by the Secretary or Assistant
Secretary of the Company. Each such certificate shall include
the statements provided for in Section 13.06, if and to the
extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee of or counsel for
the Company. Each such opinion shall include the statements
provided for in Section 13.06, if and to the extent required by
the provisions thereof.
Outstanding:
The term "outstanding", when used with reference to Securities of
any series, shall, subject to the provisions of Section 8.04,
mean, as of any particular time, all Securities of that series
theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Securities theretofore canceled by the
Trustee or any paying agent, or delivered to the Trustee or any
paying agent for cancellation or which have previously been
canceled; (b) Securities or portions thereof for the payment or
redemption of which monies or Eligible Obligations in the
necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent); provided,
however, that if such Securities or portions of such Securities
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for
giving such notice; and (c) Securities in lieu of or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.07. The principal amount of a Discount Security that shall be
deemed to be Outstanding for purposes of this Indenture shall be
the amount of the principal thereof that would be due and payable
as of the date of such determination upon a declaration of
acceleration of the maturity thereof.
Periodic Offering:
The term "Periodic Offering" means an offering of Securities of a
series from time to time, during which any or all of the specific
terms of the Securities, including without limitation the rate or
rates of interest, if any, thereon, the maturity or maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
Person:
The term "person" means any individual, corporation, partnership,
limited liability company, joint venture, trust or unincorporated
organization or any Governmental Authority.
Place of Payment:
The term "Place of Payment" shall mean the place or places where
the principal of and interest, if any, on the Securities of any
series are payable as specified in accordance with Section 2.01.
Predecessor Security:
The term "Predecessor Security" of any particular Security shall
mean every previous Security evidencing all or a portion of the
same debt as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and
delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
Responsible Officer:
The term "Responsible Officer" when used with respect to the
Trustee shall mean the chairman of the board of directors, the
president, any vice president, the secretary, the treasurer, any
trust officer, any corporate trust officer or any other officer
or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
Security or Securities:
The term "Security" or "Securities" shall mean any Security or
Securities, as the case may be, authenticated and delivered under
this Indenture.
Securityholder:
The term "Securityholder", "holder of Securities" or "registered
holder" shall mean the person or persons in whose name or names a
particular Security shall be registered on the books of the
Company kept for that purpose in accordance with the terms of
this Indenture.
Series:
The term "series" means a series of Securities established
pursuant to this Indenture and includes, if the context so
requires, each Tranche thereof.
Tranche:
The term "Tranche" means Securities which (a) are of the same
series and (b) have identical terms except as to principal amount
and/or date of issuance.
Trustee:
The term "Trustee" shall mean Bankers Trust Company, and, subject
to the provisions of Article Seven, shall also include its
successors and assigns, and, if at any time there is more than
one person acting in such capacity hereunder, "Trustee" shall
mean each such person. The term "Trustee" as used with respect
to a particular series of the Securities shall mean the trustee
with respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of
Sections 9.01, 9.02, and 10.01, shall mean the Trust Indenture
Act of 1939, as amended and in effect at the date of execution of
this Indenture.
United States:
The term "United States" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued from time to time in one or
more series and in one or more Tranches thereof. Each series
shall be authorized by a Company Order or Orders or one or more
indentures supplemental hereto, which shall specify whether the
Securities of such series shall be subject to a Periodic
Offering. The Company Order or Orders or supplemental indenture
and, in the case of a Periodic Offering, Instructions or other
procedures acceptable to the Trustee specified in such Company
Order or Orders, shall establish the terms of the series, which
may include the following: (i) any limitations on the aggregate
principal amount of the Securities to be authenticated and
delivered under this Indenture as part of such series (except for
Securities authenticated and delivered upon registration of
transfer of, in exchange for or in lieu of other Securities of
that series); (ii) the stated maturity or maturities of such
series; (iii) the date or dates from which interest shall accrue,
the Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates and
the record date for the determination of holders to whom interest
is payable on any such Interest Payment Date; (iv) the interest
rate or rates (which may be fixed or variable), or method of
calculation of such rate or rates, for such series; (v) the
terms, if any, regarding the redemption, purchase or repayment of
such series (whether at the option of the Company or a holder of
the Securities of such series and whether pursuant to a sinking
fund or analogous provisions, including payments made in cash in
anticipation of future sinking fund obligations), including
redemption, purchase or repayment date or dates of such series,
if any, and the price or prices and other terms and conditions
applicable to such redemption, purchase or repayment (including
any premium); (vi) whether or not the Securities of such series
shall be issued in whole or in part in the form of a Global
Security and, if so, the Depositary for such Global Security and
the related procedures with respect to transfer and exchange of
such Global Security; (vii) the designation of such series;
(viii) the form of the Securities of such series; (ix) the
maximum annual interest rate, if any, of the Securities permitted
for such series; (x) whether the Securities of such series shall
be subject to Periodic Offering; (xi) the currency or currencies,
including composite currencies, in which payment of the principal
of (and premium, if any) and interest on the Securities of such
series shall be payable, if other than Dollars; (xii) any other
information necessary to complete the Securities of such series;
(xiii) the establishment of any office or agency pursuant to
Section 4.02 hereof and any other place or places which the
principal of and interest, if any, on Securities of that series
shall be payable; (xiv) if other than denominations of $1,000 or
any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable; (xv) the obligations
or instruments, if any, which shall be considered to be Eligible
Obligations in respect of the Securities of such series
denominated in a currency other than Dollars or in a composite
currency; (xvi) whether or not the Securities of such series
shall be issued as Discount Securities and the terms thereof,
including the portion of the principal amount thereof which shall
be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01(b); (xvii) if the principal of
and premium, if any, or interest, if any, on such Securities are
to be payable, at the election of the Company or the holder
thereof, in coin or currency, including composite currencies,
other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions
upon which, such election shall be made; (xviii) if the amount of
payment of principal of and premium, if any, or interest, if any,
on such Securities may be determined with reference to an index,
formula or other method, or based on a coin or currency other
than that in which the Securities are stated to be payable, the
manner in which such amount shall be determined; and (xix) any
other terms of such series not inconsistent with this Indenture.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to any such Company Order or in any
indentures supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Company Order, a copy of an appropriate
record of the applicable Board Resolution shall be certified by
the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Company Order setting forth the terms of that series.
SECTION 2.02. The Securities of any series shall be
substantially of the tenor and purport (i) as set forth in one or
more indentures supplemental hereto or as provided in a Company
Order, or (ii) with respect to any Tranche of Securities of a
series subject to Periodic Offering, to the extent permitted by
any of the documents referred to in clause (i) above, in
Instructions, or by other procedures acceptable to the Trustee
specified in such Company Order or Orders, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification
or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Securities of
that series may be listed or of the Depository, or to conform to
usage.
The Trustee's Certificate of Authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
in accordance with, and referred to in, the within-
mentioned Indenture.
Dated:
BANKERS TRUST COMPANY
By:___________________________
Authorized Signatory"
SECTION 2.03. The Securities shall be issuable as
registered Securities and in the denominations of $1,000 or any
integral multiple thereof, subject to Sections 2.01(xi) and
(xiv). The Securities of a particular series shall bear interest
payable on the dates and at the rate or rates specified with
respect to that series. Except as otherwise specified as
contemplated by Section 2.01, the principal of and the interest
on the Securities of any series, as well as any premium thereon
in case of redemption thereof prior to maturity, shall be payable
in Dollars at the office or agency of the Company maintained for
that purpose. Each Security shall be dated the date of its
authentication.
The interest installment on any Security which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date for Securities of that series shall be paid to the
person in whose name said Security (or one or more Predecessor
Securities) is registered at the close of business on the regular
record date for such interest installment, except that interest
payable on redemption or maturity shall be payable as set forth
in the Company Order or indenture supplemental hereto
establishing the terms of such series of Securities.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date for Securities of the same series (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by
the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted
Interest on Securities to the persons in whose names such
Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of
the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed,
first class postage prepaid, to each Securityholder at his
or her address as it appears in the Security Register (as
hereinafter defined), not less than 10 days prior to such
special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest
shall be paid to the persons in whose names such Securities
(or their respective Predecessor Securities) are registered
on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Company Order or one or more
indentures supplemental hereto establishing the terms of any
series of Securities pursuant to Section 2.01 hereof, the term
"regular record date" as used in this Section with respect to a
series of Securities with respect to any Interest Payment Date
for such series shall mean either the fifteenth day of the month
immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month,
or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series
pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such
date is a Business Day.
Subject to the foregoing provisions of this Section, each
Security of a series delivered under this Indenture upon transfer
of or in exchange for or in lieu of any other Security of such
series shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Security.
SECTION 2.04. The Securities shall, subject to the
provisions of Section 2.06, be printed on steel engraved borders
or fully or partially engraved, or legibly typed, as the proper
officer of the Company may determine, and shall be signed on
behalf of the Company by an Authorized Officer. The signature of
such Authorized Officer upon the Securities may be in the form of
a facsimile signature of a present or any future Authorized
Officer and may be imprinted or otherwise reproduced on the
Securities and for that purpose the Company may use the facsimile
signature of any person who shall have been an Authorized
Officer, notwithstanding the fact that at the time the Securities
shall be authenticated and delivered or disposed of such person
shall have ceased to be an Authorized Officer.
Only such Securities as shall bear thereon a Certificate of
Authentication substantially in the form established for such
Securities, executed manually by an authorized signatory of the
Trustee, or by any Authenticating Agent with respect to such
Securities, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate
executed by the Trustee, or by any Authenticating Agent appointed
by the Trustee with respect to such Securities, upon any Security
executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and
delivered hereunder and that the registered holder thereof is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, together with an indenture supplemental hereto or
a Company Order for the authentication and delivery of such
Securities and the Trustee, in accordance with such supplemental
indenture or Company Order, shall authenticate and deliver such
Securities; provided, however, that in the case of Securities
offered in a Periodic Offering, the Trustee shall authenticate
and deliver such Securities from time to time in accordance with
Instructions or such other procedures acceptable to the Trustee
as may be specified by or pursuant to such supplemental indenture
or Company Order delivered to the Trustee prior to the time of
the first authentication of Securities of such series.
In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall receive and (subject to
Section 7.01) shall be fully protected in relying upon, (i) an
Opinion of Counsel and (ii) and Officers' Certificate, each
stating that the form and terms thereof have been established in
conformity with the provisions of this Indenture; provided,
however, that, with respect to Securities of a series subject to
a Periodic Offering, the Trustee shall be entitled to receive
such Opinion of Counsel and Officers' Certificate only once at or
prior to the time of the first authentication of Securities of
such series and that, in such opinion or certificate, the opinion
or certificate described above may state that when the terms of
such Securities, or each Tranche thereof, shall have been
established pursuant to a Company Order or Orders or pursuant to
such procedures acceptable to the Trustee, as may be specified by
a Company Order, such terms will have been established in
conformity with the provisions of this Indenture. Each Opinion
of Counsel and Officers' Certificate delivered pursuant to this
Section 2.04 shall include all statements prescribed in Section
13.06(b). Such Opinion of Counsel shall also be to the effect
that when such Securities have been executed by the Company and
authenticated by the Trustee in accordance with the provisions of
this Indenture and delivered to and duly paid for by the
purchasers thereof, they will be valid and legally binding
obligations of the Company, enforceable in accordance with their
terms (subject to customary exceptions) and will be entitled to
the benefits of this Indenture.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the forms
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Company Order, Opinion of
Counsel, Officers' Certificate and other documents delivered
pursuant to Sections 2.01 and this Section, as applicable, at or
prior to the time of the first authentication of Securities of
such series unless and until such Company Order, Opinion of
Counsel, Officers' Certificate or other documents have been
superseded or revoked or expire by their terms.
The Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Securities of any series may be
exchanged upon presentation thereof at the office or agency of
the Company designated for such purpose, for other Securities of
such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, all as
provided in this Section. In respect of any Securities so
surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in
exchange therefor the Security or Securities of the same series
which the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of
Manhattan, the City and State of New York, or such other location
designated by the Company a register or registers (herein
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as in
this Article provided and which at all reasonable times shall be
open for inspection by the Trustee. The registrar for the
purpose of registering Securities and transfer of Securities as
herein provided shall be appointed as authorized by Board
Resolution or Company Order (the "Security Registrar").
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose in the Borough
of Manhattan, the City and State of New York, or other location
as aforesaid, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name
of the transferee or transferees a new Security or Securities of
the same series as the Security presented for a like aggregate
principal amount.
All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by his duly authorized
attorney in writing.
(c) Except as provided in the first paragraph of Section
2.07, no service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.06, Section 3.03(b) and Section
9.04 not involving any transfer.
(d) The Company shall neither be required (i) to issue,
exchange or register the transfer of any Securities during a
period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of less than all the
outstanding Securities of the same series and ending at the close
of business on the day of such mailing, nor (ii) to register the
transfer of or exchange any Securities of any series or portions
thereof called for redemption or as to which the holder thereof
has exercised its right, if any, to require the Company to
repurchase such Security in whole or in part, except that portion
of such Security not required to be repurchased. The provisions
of this Section 2.05 are, with respect to any Global Security,
subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive
Securities of any series, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized
denomination, and substantially in the form of the definitive
Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company.
Every temporary Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities of such series in accordance
with Section 2.04. Without unnecessary delay the Company will
execute and will furnish definitive Securities of such series and
thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor (without charge to the holders
thereof), at the office or agency of the Company designated for
the purpose, and the Trustee shall authenticate and such office
or agency shall deliver in exchange for such temporary Securities
an equal aggregate principal amount of definitive Securities of
such series, unless the Company advises the Trustee to the effect
that definitive Securities need not be executed and furnished
until further notice from the Company. Until so exchanged, the
temporary Securities of such series shall be entitled to the same
benefits under this Indenture as definitive Securities of such
series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the
Company (subject to the next succeeding sentence) shall execute,
and upon its request the Trustee (subject as aforesaid) shall
authenticate and deliver, a new Security of the same series
bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substituted Security shall furnish
to the Company and to the Trustee such security or indemnity as
may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall
also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's
Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same
upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith. In case any Security which
has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss
or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of
the ownership thereof.
Every Security issued pursuant to the provisions of this
Section in substitution for any Security which is mutilated,
destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be found at
any time, or be enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued
hereunder. All Securities shall be held and owned upon the
express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the
extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their
surrender.
SECTION 2.08. All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer, or for
credit against a sinking fund, shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be
canceled by it, and no Securities shall be issued in lieu thereof
except as expressly required or permitted by any of the
provisions of this Indenture. On request of the Company, the
Trustee shall deliver to the Company canceled Securities held by
the Trustee. In the absence of such request the Trustee may
dispose of canceled Securities in accordance with its standard
procedures. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the
Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the
Securities, express or implied, shall give or be construed to
give to any person, firm or corporation, other than the parties
hereto and the holders of the Securities, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the
Securities.
SECTION 2.10. So long as any of the Securities of any
series remain outstanding there may be an Authenticating Agent
for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the
Trustee hereunder. All references in this Indenture to the
authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series
except for authentication upon original issuance or pursuant to
Section 2.07 hereof. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation which has a
combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and which is otherwise authorized under
such laws to conduct such business and is subject to supervision
or examination by Federal or State authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance
with these provisions it shall resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to
the Company. Upon resignation, termination or cessation of
eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of
its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto. The
Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
SECTION 2.11. (a) If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to
be issued as a Global Security, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04,
authenticate and deliver, a Global Security which (i) shall
represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be authenticated and
delivered by the Trustee to the Depository or pursuant to the
Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of
the Depository or to a successor Depository or to a nominee of
such successor Depository."
(b) Notwithstanding the provisions of Section 2.05, the
Global Security of a series may be transferred, in whole but not
in part and in the manner provided in Section 2.05, only to
another nominee of the Depository for such series, or to a
successor Depository for such series selected or approved by the
Company or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of
Securities notifies the Company that it is unwilling or unable to
continue as Depository for such series or if at any time the
Depository for such series shall no longer be registered or in
good standing under the Exchange Act, or other applicable statute
or regulation and a successor Depository for such series is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the
case may be, this Section 2.11 shall no longer be applicable to
the Securities of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and
deliver Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In
addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a
Global Security and that the provisions of this Section 2.11
shall no longer apply to the Securities of such series. In such
event the Company will execute, and subject to Section 2.05, the
Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver
Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security.
Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in
exchange for the Global Security pursuant to this Section 2.11(c)
shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Security Registrar. The Trustee shall deliver such
Securities to the Depository for delivery to the persons in whose
names such Securities are so registered.
SECTION 2.12. In the case of the Securities of any series
denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified
with respect to such Securities as contemplated by Section 2.01,
the obligation of the Company to make any payment of the
principal thereof, or the premium or interest thereon, shall not
be discharged or satisfied by any tender by the Company, or
recovery by the Trustee, in any currency other than the Required
Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the
Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The costs and
risks of any such exchange, including, without limitation, the
risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee
be liable therefor except in the case of its negligence or
willful misconduct.
SECTION 2.13. The Company in issuing Securities may use
"CUSIP" numbers (if then generally in use) and, if so used, the
Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to holders of Securities; provided that any such
notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities
or contained in any notice of redemption and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE THREE
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Securities of any
series issued hereunder on and after the dates and in accordance
with the terms established for such series pursuant to Section
2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a
portion of the Securities of any series in accordance with the
right reserved so to do, it shall give notice of such redemption
to holders of the Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption
not less than 30 days and not more than 60 days before the date
fixed for redemption of that series to such holders at their last
addresses as they shall appear upon the Security Register. Any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly
to give such notice to the holder of any Security of any series
designated for redemption in whole or in part, or any defect in
the notice, shall not affect the validity of the proceedings for
the redemption of any other Securities of such series or any
other series. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption or
subject to compliance with certain conditions provided in the
terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with any such restriction or condition.
Unless otherwise so provided as to a particular series of
Securities, if at the time of mailing of any notice of redemption
the Company shall not have deposited with the paying agent an
amount in cash sufficient to redeem all of the Securities called
for redemption, including accrued interest to the date fixed for
redemption, such notice shall state that it is subject to the
receipt of redemption moneys by the paying agent on or before the
date fixed for redemption (unless such redemption is mandatory)
and such notice shall be of no effect unless such moneys are so
received on or before such date.
Each such notice of redemption shall identify the Securities
to be redeemed (including CUSIP numbers, if any), specify the
date fixed for redemption and the redemption price at which
Securities of that series are to be redeemed, and shall state
that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company,
upon presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as
specified in said notice, that from and after said date interest
will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Securities of a
series are to be redeemed, the notice to the holders of
Securities of that series to be redeemed in whole or in part
shall specify the particular Securities to be so redeemed. In
case any Security is to be redeemed in part only, the notice
which relates to such Security shall state the portion of the
principal amount thereof to be redeemed, and shall state that on
and after the redemption date, upon surrender of such Security, a
new Security or Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days'
notice in advance of the date fixed for redemption (unless the
Trustee shall agree to a shorter period) as to the aggregate
principal amount of Securities of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other
manner as it shall deem appropriate and fair in its discretion
and which may provide for the selection of a portion or portions
(equal to $1,000 or any integral multiple thereof, subject to
Sections 2.01(xi) and (xiv)) of the principal amount of such
Securities of a denomination larger than $1,000 (subject as
aforesaid), the Securities to be redeemed and shall thereafter
promptly notify the Company in writing of the numbers of the
Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by an Authorized
Officer, instruct the Trustee or any paying agent to call all or
any part of the Securities of a particular series for redemption
and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own
name as the Trustee or such paying agent may deem advisable. In
any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, the Trustee
or such paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent
to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or
portions of Securities of the series to be redeemed specified in
such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price,
together with, subject to the Company Order or supplemental
indenture hereto establishing the terms of such series of
Securities, interest accrued to the date fixed for redemption and
interest on such Securities or portions of Securities shall cease
to accrue on and after the date fixed for redemption, unless the
Company shall default in the payment of such redemption price and
accrued interest with respect to any such Security or portion
thereof. On presentation and surrender of such Securities on or
after the date fixed for redemption at the place of payment
specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series,
together with, subject to the Company Order or supplemental
indenture hereto establishing the terms of such series of
Securities, interest accrued thereon to the date fixed for
redemption.
(b) Upon presentation of any Security of such series which
is to be redeemed in part only, the Company shall execute and the
Trustee shall authenticate and the office or agency where the
Security is presented shall deliver to the holder thereof, at the
expense of the Company, a new Security or Securities of the same
series, of authorized denominations in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 3.04. The provisions of this Section 3.04 and
Sections 3.05 and 3.06 shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such
series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as
a "mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Securities of
any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.05. Each sinking
fund payment shall be applied to the redemption of Securities of
such series as provided for by the terms of Securities of such
series.
SECTION 3.05. The Company (i) may deliver Outstanding
Securities of a series (other than any previously called for
redemption) and (ii) may apply as a credit Securities of a series
which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of
all or any part of any mandatory sinking fund payment; provided
that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the
Trustee at the redemption price specified in such Securities for
redemption through operation of the mandatory sinking fund and
the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking
fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers'
Certificate, deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.02, except that the
notice of redemption shall also state that the Securities of such
series are being redeemed by operation of the sinking fund and
the sinking fund payment date. Such notice having been duly
given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 3.03.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the
Securities as follows:
SECTION 4.01. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and
interest on the Securities of that series at the time and place
and in the manner provided herein and established with respect to
such Securities.
SECTION 4.02. So long as any series of the Securities
remain outstanding, the Company agrees to maintain an office or
agency with respect to each such series, which shall be in the
Borough of Manhattan, the City and State of New York or at such
other location or locations as may be designated as provided in
this Section 4.02, where (i) Securities of that series may be
presented for payment, (ii) Securities of that series may be
presented as hereinabove authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by
written notice signed by an Authorized Officer and delivered to
the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, notices
and demands. The Trustee will initially act as paying agent for
the Securities.
The Company may also from time to time, by written notice
signed by an Authorized Officer and delivered to the Trustee,
designate one or more other offices or agencies for the foregoing
purposes within or outside the Borough of Manhattan, City of New
York, and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligations to maintain
an office or agency in the Borough of Manhattan, City of New York
for the foregoing purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such
other office or agency.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents for all or any series of the Securities, other than
the Trustee, the Company will cause each such paying agent to
execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of
this Section:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of (and premium, if
any) or interest on the Securities of that series (whether
such sums have been paid to it by the Company or by any
other obligor of such Securities) in trust for the benefit
of the persons entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor of such
Securities) to make any payment of the principal of (and
premium, if any) or interest on the Securities of that
series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2)
above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying
agent; and
(4) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Securities, it will on or before
each due date of the principal of (and premium, if any) or
interest on Securities of that series, set aside, segregate and
hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Securities of that series until such
sums shall be paid to such persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have
one or more paying agents for any series of Securities, it will,
prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with the
paying agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust
for the benefit of the persons entitled to such principal,
premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(c) Anything in this Section to the contrary
notwithstanding, (i) the agreement to hold sums in trust as
provided in this Section is subject to the provisions of Section
11.04, and (ii) the Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying
agent, such sums to be held by the Trustee upon the same terms
and conditions as those upon which such sums were held by the
Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released
from all further liability with respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 4.05. The Company will not, while any of the
Securities remain outstanding, consolidate with, or merge into,
or merge into itself, or sell or convey all or substantially all
of its property to any other Person unless the provisions of
Article Ten hereof are complied with.
ARTICLE FIVE
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) on each regular record date (as
defined in Section 2.03) for the Securities of each Tranche of a
series a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of such
Tranche of Securities as of such regular record date, provided,
that the Company shall not be obligated to furnish or cause to be
furnished such list at any time that the list shall not differ in
any respect from the most recent list furnished to the Trustee by
the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the
Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished; provided, however, no such list need be furnished for
any series for which the Trustee shall be the Security Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Securities contained
in the most recent list furnished to it as provided in Section
5.01 and as to the names and addresses of holders of Securities
received by the Trustee in its capacity as Security Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Securities of a series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate with
other holders of Securities of such series or holders of all
Securities with respect to their rights under this Indenture or
under such Securities, and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after
the receipt of such application, at its election, either:
(1) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 5.02; or
(2) inform such applicants as to the approximate
number of holders of Securities of such series or of all
Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a)
of this Section 5.02, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
(d) If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each holder of
such series or of all Securities, as the case may be, whose name
and address appears in the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a)
of this Section 5.02, a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests
of the holders of Securities of such series or of all Securities,
as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders
with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise, the Trustee shall be relieved
of any obligation or duty to such applicants respecting their
application.
(e) Each and every holder of the Securities, by receiving
and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any paying agent nor
any Security Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the holders of Securities in accordance with the provisions of
subsection (c) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under said subsection (c).
SECTION 5.03. (a) The Company covenants and agrees to file
with the Trustee, within 30 days after the Company is required to
file the same with the Commission, a copy of the annual reports
and of the information, documents and other reports (or a copy of
such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the
Trustee and, unless the Commission shall not accept such
information, documents or reports, the Commission, in accordance
with the rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable overnight delivery
service which provides for evidence of receipt, to the
Securityholders, as their names and addresses appear upon the
Security Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the
Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before May 15 in each calendar year in which any
of the Securities are outstanding, or on or before such other day
in each calendar year as the Company and the Trustee may from
time to time agree upon, a Certificate as to compliance with all
conditions and covenants under this Indenture. For purposes of
this subsection (d), such compliance shall be determined without
regard to any period of grace or requirement of notice provided
under this Indenture.
(e) Delivery of such information, documents or reports to
the Trustee pursuant to Section 5.03(a) or 5.03(b) is for
informational purposes only and the Trustee's receipt thereof
shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including, in the case of Section 5.03(b), the Company's
compliance with any of the covenants hereunder.
SECTION 5.04. (a) On or before July 15 in each year in
which any of the Securities are outstanding, the Trustee shall
transmit by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the
Security Register, a brief report dated as of the preceding May
15, with respect to any of the following events which may have
occurred within the previous twelve months (but if no such event
has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09,
and its qualifications under Section 310(b) of the Trust
Indenture Act;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of
Section 310 of the Trust Indenture Act;
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Securities, on any property
or funds held or collected by it as trustee if such advances
so remaining unpaid aggregate more than 1/2 of 1% of the
principal amount of the Securities outstanding on the date
of such report;
(4) any change to the amount, interest rate, and
maturity date of all other indebtedness owing by the
Company, or by any other obligor on the Securities, to the
Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as
collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described
in paragraphs (2), (3), (4) or (6) of Section 311(b) of the
Trust Indenture Act;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of
property subject to the lien, if any, of this Indenture (and
the consideration thereof, if any) which it has not
previously reported;
(7) any additional issue of Securities which the
Trustee has not previously reported; and
(8) any action taken by the Trustee in the performance
of its duties under this Indenture which it has not
previously reported and which in its opinion materially
affects the Securities or the Securities of any series,
except any action in respect of a default, notice of which
has been or is to be withheld by it in accordance with the
provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register, a brief report with respect to
the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making
thereof) made by the Trustee as such since the date of the last
report transmitted pursuant to the provisions of subsection (a)
of this Section (or if no such report has yet been so
transmitted, since the date of execution of this Indenture), for
the reimbursement of which it claims or may claim a lien or
charge prior to that of the Securities of any series on property
or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection if such advances
remaining unpaid at any time aggregate more than 10% of the
principal amount of Securities of such series outstanding at such
time, such report to be transmitted within 90 days after such
time.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the
Company, with each stock exchange upon which any Securities are
listed (if so listed) and also with the Commission. The Company
agrees to notify the Trustee when any Securities become listed on
any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to
Securities of a particular series, "Event of Default" means any
one or more of the following events which has occurred and is
continuing:
(1) default in the payment of any installment of
interest upon any of the Securities of that series, as and
when the same shall become due and payable, and continuance
of such default for a period of 30 days;
(2) default in the payment of the principal of (or
premium, if any, on) any of the Securities of that series as
and when the same shall become due and payable whether at
maturity, upon redemption, pursuant to any sinking fund
obligation, by declaration or otherwise, and continuance of
such default for a period of 3 Business Days;
(3) failure on the part of the Company duly to observe
or perform any other of the covenants or agreements on the
part of the Company with respect to that series contained in
such Securities or otherwise established with respect to
that series of Securities pursuant to Section 2.01 hereof or
contained in this Indenture (other than a covenant or
agreement which has been expressly included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days
after the date on which written notice of such failure,
requiring the same to be remedied and stating that such
notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by the
holders of at least 33% in principal amount of the
Securities of that series at the time outstanding;
(4) a decree or order by a court having jurisdiction
in the premises shall have been entered adjudging the
Company as bankrupt or insolvent, or approving as properly
filed a petition seeking liquidation or reorganization of
the Company under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, and such decree or
order shall have continued unvacated and unstayed for a
period of 90 consecutive days; or an involuntary case shall
be commenced under such Code in respect of the Company and
shall continue undismissed for a period of 90 consecutive
days or an order for relief in such case shall have been
entered; or a decree or order of a court having jurisdiction
in the premises shall have been entered for the appointment
on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy
or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, and such decree or
order shall have remained in force unvacated and unstayed
for a period of 90 consecutive days;
(5) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking liquidation or
reorganization under the Federal Bankruptcy Code or any
other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent
to the appointment on the ground of insolvency or bankruptcy
of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its
property, or shall make an assignment for the benefit of
creditors; or
(6) the occurrence of any other Event of Default with
respect to Securities of such series, as contemplated by
Section 2.01 hereof.
(b) The Company shall file with the Trustee written notice
of the occurrence of any Event of Default within five Business
Days of the Company's becoming aware of any such Event of
Default. In each and every such case, unless the principal of
all the Securities of that series shall have already become due
and payable, either the Trustee or the holders of not less than
33% in aggregate principal amount of the Securities of that
series then outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by such Securityholders),
may declare the principal (or, if any of such Securities are
Discount Securities, such portion of the principal amount thereof
as may be specified by their terms as contemplated by Section
2.01) of all the Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything contained in
this Indenture or in the Securities of that series or established
with respect to that series pursuant to Section 2.01 hereof to
the contrary notwithstanding.
(c) Section 6.01(b), however, is subject to the condition
that if, at any time after the principal of the Securities of
that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the monies due
shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all
the Securities of that series and the principal of (and premium,
if any, on) any and all Securities of that series which shall
have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and any
and all defaults under the Indenture, other than the nonpayment
of principal on Securities of that series which shall not have
become due by their terms, shall have been remedied or waived as
provided in Section 6.06, then and in every such case the holders
of a majority in aggregate principal amount of the Securities of
that series then outstanding, by written notice to the Company
and to the Trustee, may rescind and annul such declaration and
its consequences with respect to that series of Securities; but
no such rescission and annulment shall extend to or shall affect
any subsequent default, or shall impair any right consequent
thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Securities of that series under this
Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee
shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such
proceedings had been taken.
SECTION 6.02. (a) The Company covenants that in case an
Event of Default described in subsection 6.01(a)(1) or (a)(2)
shall have occurred and be continuing, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of
the holders of the Securities of that series, the whole amount
that then shall have become due and payable on all such
Securities for principal (and premium, if any) or interest, or
both, as the case may be, with interest upon the overdue
principal (and premium, if any) and (to the extent that payment
of such interest is enforceable under applicable law and without
duplication of any other amounts paid by the Company in respect
thereof) upon overdue installments of interest at the rate per
annum expressed in the Securities of that series; and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
other obligor upon the Securities of that series and collect in
the manner provided by law out of the property of the Company or
other obligor upon the Securities of that series wherever
situated the monies adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement,
composition or other judicial proceedings affecting the Company,
any other obligor on such Securities, or the creditors or
property of either, the Trustee shall have power to intervene in
such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in
order to have the claims of the Trustee and of the holders of
Securities of such series allowed for the entire amount due and
payable by the Company or such other obligor under this Indenture
at the date of institution of such proceedings and for any
additional amount which may become due and payable by the Company
or such other obligor after such date, and to collect and receive
any monies or other property payable or deliverable on any such
claim, and to distribute the same after the deduction of the
amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the holders of Securities of such
series to make such payments to the Trustee, and, in the event
that the Trustee shall consent to the making of such payments
directly to such Securityholders, to pay to the Trustee any
amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to
Securities of that series, may be enforced by the Trustee without
the possession of any of such Securities, or the production
thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for payment to the
Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce
any of such rights, either at law or in equity or in bankruptcy
or otherwise, whether for the specific enforcement of any
covenant or agreement contained in the Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of that series
or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03. Any monies collected by the Trustee pursuant
to Section 6.02 with respect to a particular series of Securities
shall be applied in the order following, at the date or dates
fixed by the Trustee and, in case of the distribution of such
monies on account of principal (or premium, if any) or interest,
upon presentation of the several Securities of that series, and
stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee under
Section 7.06;
SECOND: To the payment of the amounts then due and
unpaid upon Securities of such series for principal (and
premium, if any) and interest, in respect of which or for
the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal
(and premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Security of any series shall
have any right by virtue or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Indenture or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the
continuance thereof with respect to Securities of such series
specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 33% in aggregate
principal amount of the Securities of such series then
outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as
trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such
action, suit or proceeding; it being understood and intended, and
being expressly covenanted by the taker and holder of every
Security of such series with every other such taker and holder
and the Trustee, that no one or more holders of Securities of
such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any
other of such Securities, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of
Securities of such series. For the protection and enforcement of
the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on
such Security, as therein provided, on or after the respective
due dates expressed in such Security (or in the case of
redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the
consent of such holder.
SECTION 6.05. (a) All powers and remedies given by this
Article to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive
of any others thereof or of any other powers and remedies
available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such
Securities.
(b) No delay or omission of the Trustee or of any holder of
any of the Securities to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Securities of any series at the time
outstanding, determined in accordance with Section 8.04, shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with
respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this
Indenture or unduly prejudicial to the rights of holders of
Securities of any other series at the time outstanding determined
in accordance with Section 8.04 not parties thereto. Subject to
the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed might involve the
Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Securities of any series at the
time outstanding affected thereby, determined in accordance with
Section 8.04, may on behalf of the holders of all of the
Securities of such series waive any past default in the
performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series
and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due
by the terms of such Securities otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal otherwise than
by acceleration and any premium has been deposited with the
Trustee (in accordance with Section 6.01(c))) or a call for
redemption of Securities of that series. Upon any such waiver,
the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the
holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series,
transmit by mail, first class postage prepaid, to the holders of
Securities of that series, as their names and addresses appear
upon the Security Register, notice of all defaults with respect
to that series known to the Trustee, unless such defaults shall
have been cured or waived before the giving of such notice (the
term "defaults" for the purposes of this Section being hereby
defined to be the events specified in subsections (1), (2), (3),
(4), (5), (6) and (7) of Section 6.01(a), not including any
periods of grace provided for therein and irrespective of the
giving of notice provided for by subsection (4) of Section
6.01(a)); provided, that, except in the case of default in the
payment of the principal of (or premium, if any) or interest on
any of the Securities of that series or in the payment of any
sinking or analogous fund installment established with respect to
that series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible
Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of
Securities of that series; provided further, that in the case of
any default of the character specified in Section 6.01(a)(4) with
respect to Securities of such series no such notice to the
holders of the Securities of that series shall be given until at
least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under subsection (a)(1), (a)(2) or
(a)(3) of Section 6.01 as long as the Trustee is acting as paying
agent for such series of Securities or (ii) any default as to
which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this
Indenture shall have obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each
holder of any Securities by his or her acceptance thereof shall
be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than
10% in aggregate principal amount of the outstanding Securities
of any series, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on
or after the respective due dates expressed in such Security or
established pursuant to this Indenture.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the occurrence of
an Event of Default with respect to Securities of a series and
after the curing of all Events of Default with respect to
Securities of that series which may have occurred, shall
undertake to perform with respect to Securities of such series
such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee. In case an Event
of Default with respect to Securities of a series has occurred
(which has not been cured or waived), the Trustee shall exercise
with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that:
(1) prior to the occurrence of an Event of Default
with respect to Securities of a series and after the curing
or waiving of all such Events of Default with respect to
that series which may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to Securities of such series be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with
respect to Securities of such series except for the
performance of such duties and obligations as are
specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to Securities
of such series conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein);
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the holders of not less
than a majority in principal amount of the Securities of any
series at the time outstanding relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
(4) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur or risk personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if the Trustee reasonably believes
that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably
assured to it.
(c) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, demand, approval,
bond, security or other paper or document believed by it (i) to
be genuine and (ii) to have been signed or presented by the
proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an Officers' Certificate (unless other evidence in
respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken or suffered or omitted hereunder in good faith and
in reliance thereon;
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
herein contained shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (which has not been cured
or waived) to exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and
to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, direction, order, demand, approval, bond,
security, or other papers or documents, unless requested in
writing so to do by the holders of not less than a majority in
principal amount of the outstanding Securities of the particular
series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the
Company upon demand. Notwithstanding the foregoing, the Trustee,
in its direction, may make such further inquiry or investigation
into such facts or matters as it may see fit. In making any
investigation required or authorized by this subparagraph, the
Trustee shall be entitled to examine books, records and premises
of the Company, personally or by agent or attorney;
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty.
SECTION 7.03. (a) The recitals contained herein and in the
Securities (other than the Certificate of Authentication on the
Securities) shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for the correctness of the
same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Securities or of the
proceeds of such Securities, or for the use or application of any
monies paid over by the Trustee in accordance with any provision
of this Indenture or established pursuant to Section 2.01, or for
the use or application of any monies received by any paying agent
other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become
the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
SECTION 7.05. Subject to the provisions of Section 11.04,
all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be under
no liability for interest on any monies received by it hereunder
except such as it may agree in writing with the Company to pay
thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in
the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the
Trustee, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
of the provisions of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its
counsel and agents and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may
arise from its negligence, willful misconduct or bad faith. The
Company also covenants to indemnify the Trustee (and its
officers, agents, directors and employees) for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence, willful misconduct or bad faith on the part of the
Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs
and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon
all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of
particular Securities.
(c) Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses or
renders services in connection with an Event of Default, the
expenses (including reasonable charges and expenses of its
counsel) and compensation for its services are intended to
constitute expenses of administration under applicable federal or
state bankruptcy, insolvency or similar law.
(d) The provisions of this Section 7.06 shall survive the
satisfaction and discharge of this Indenture or the appointment
of a successor trustee.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed)
may, in the absence of bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the
absence of bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted
to be taken by it under the provisions of this Indenture upon the
faith thereof.
SECTION 7.08. If the Trustee has acquired or shall acquire
a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 7.09. There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all
times be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or other
person permitted to act as trustee by the Commission, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million dollars, and
subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. The
Company may not, nor may any person directly or indirectly
controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Securities
of one or more series by giving written notice thereof to the
Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Securityholders of such series, as
their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities
of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series,
or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may,
subject to the provisions of Section 6.08, on behalf of himself
and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by
the Company or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least six
months; or
(2) The Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Company
or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with
respect to all Securities and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.08, unless, with respect
to subsection (b)(1) above, the Trustee's duty to resign is
stayed as provided in Section 310(b) of the Trust Indenture Act,
any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount
of the Securities of any series at the time outstanding may at
any time remove the Trustee with respect to such series and
appoint a successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Securities
of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this
Section may be appointed with respect to the Securities of one or
more series or all of such series, and at any time there shall be
only one Trustee with respect to the Securities of any particular
series.
SECTION 7.11. (a) In case of the appointment hereunder of
a successor trustee with respect to all Securities, every such
successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the
Company or the successor trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder, subject to any
prior lien provided for in Section 7.06(b).
(b) In case of the appointment hereunder of a successor
trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each successor
trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor trustee
relates, (2) shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and
upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee
shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the
Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on
request of the Company or any successor trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series
to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment
unless at the time of such acceptance such successor trustee
shall be qualified under the Trust Indenture Act and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee
as provided in this Section, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class
postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the
Company.
SECTION 7.12. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
qualified under the provisions of the Trust Indenture Act and
eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.13. If and when the Trustee shall become a
creditor of the Company (or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding collection of claims against
the Company (or any other obligor upon the Securities).
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate
principal amount of the Securities of a particular series may
take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of
that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed
by such holders of Securities of that series in person or by
agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers' Certificate, fix in advance a record
date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record
date, but only the Securityholders of record at the close of
business on the record date shall be deemed to be Securityholders
for the purposes of determining whether Securityholders of the
requisite proportion of outstanding Securities of that series
have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
action, and for that purpose the outstanding Securities of that
series shall be computed as of the record date; provided that no
such authorization, agreement or consent by such Securityholders
on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series
have concurred in any direction, consent or waiver under this
Indenture, the principal amount of a Discount Security that shall
be deemed to be outstanding for such purposes shall be the amount
of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of
the maturity thereof pursuant to Section 6.01.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder
(such proof will not require notarization) or his agent or proxy
and proof of the holding by any person of any of the Securities
shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such person
of any instrument may be proved in any reasonable manner
acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the
Security Register of such Securities or by a certificate of the
Security Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying
agent and any Security Registrar may deem and treat the person in
whose name such Security shall be registered upon the books of
the Company as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice
of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and (subject to
Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying
agent nor any Security Registrar shall be affected by any notice
to the contrary.
SECTION 8.04. In determining whether the holders of the
requisite aggregate principal amount of Securities of a
particular series have concurred in any direction, consent or
waiver under this Indenture, Securities of that series which are
owned by the Company or any other obligor on the Securities of
that series or by any person directly or indirectly controlling
or controlled by or under common control with the Company or any
other obligor on the Securities of that series shall be
disregarded and deemed not to be outstanding for the purpose of
any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities of such
series which the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as outstanding for the purposes of this
Section, if the pledgee shall establish to the satisfaction of
the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such
action, any holder of a Security of that series which is shown by
the evidence to be included in the Securities the holders of
which have consented to such action may, by filing written notice
with the Trustee, and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the
holder of any Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Security,
and of any Security issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether
or not any notation in regard thereto is made upon such Security.
Any action taken by the holders of the majority or percentage in
aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and
the holders of all the Securities of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, when
authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect), without the consent of
the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another person to the
Company, and the assumption by any such successor of the
covenants of the Company contained herein or otherwise
established with respect to the Securities; or
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the
protection of the holders of the Securities of all or any series,
and to make the occurrence, or the occurrence and continuance, of
a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default with
respect to such series permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set
forth; provided, however, that in respect of any such additional
covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available
to the Trustee upon such default or may limit the right of the
holders of a majority in aggregate principal amount of the
Securities of such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising
under this Indenture as shall not be inconsistent with the
provisions of this Indenture and shall not adversely affect the
interests of the holders of the Securities of any series; or
(d) to change or eliminate any of the provisions of this
Indenture or to add any new provision to this Indenture;
provided, however, that such change, elimination or addition
shall become effective only when there is no Security outstanding
of any series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provisions; or
(e) to establish the form or terms of Securities of any
series as permitted by Section 2.01; or
(f) to add any additional Events of Default with respect to
all or any series of outstanding Securities; or
(g) to provide collateral security for the Securities; or
(h) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any other matters incidental thereto; or
(i) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee with
respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the
requirements of Article Seven; or
(j) to change any place or places where (1) the principal
of and premium, if any, and interest, if any, on all or any
series of Securities shall be payable, (2) all or any series of
Securities may be surrendered for registration of transfer, (3)
all or any series of Securities may be surrendered for exchange
and (4) notices and demands to or upon the Company in respect of
all or any series of Securities and this Indenture may be served;
provided, however, that any such place shall be located in New
York, New York or be the principal office of the Company; or
(k) to provide for the payment by the Company of additional
amounts in respect of certain taxes imposed on certain holders
and for the treatment of such additional amounts as interest and
for all matters incidental thereto; or
(l) to provide for the issuance of Securities denominated
in a currency other than Dollars or in a composite currency and
for all matters incidental thereto.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and
delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, or shall by operation of law be
deemed to effect such changes or incorporate such provisions
by reference or otherwise, this Indenture shall be deemed to
have been amended so as to conform to such amendment to the
Trust Indenture Act, and the Company and the Trustee may,
without the consent of any Securityholders, enter into a
supplemental indenture hereto to effect or evidence such
changes or additional provisions; or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof
which, at the date of the execution and delivery hereof or
at any time thereafter, are required by the Trust Indenture
Act to be contained herein, this Indenture shall be deemed
to have been amended to effect such changes or elimination,
and the Company and the Trustee may, without the consent of
any Securityholders, enter into a supplemental indenture
hereto to effect such changes or elimination; or
(z) if, by reason of any such amendment, one or more
provisions which, at the date of the execution and delivery
hereof or at any time thereafter, are required by the Trust
Indenture Act to be contained herein shall be deemed to be
incorporated herein by reference or otherwise, or otherwise
made applicable hereto, and shall no longer be required to
be contained herein, the Company and the Trustee may,
without the consent of any Securityholders, enter into a
supplemental indenture hereto to effect the elimination of
such provisions.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of
Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in
aggregate principal amount of the Securities of each series
affected by such supplemental indenture or indentures at the time
outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in
effect) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner the rights of the holders of the Securities of such series
under this Indenture; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.01,
without the consent of the holders of each Security then
outstanding and affected, (ii) reduce the aforesaid percentage of
Securities, the holders of which are required to consent to any
such supplemental indenture, or reduce the percentage of
Securities, the holders of which are required to waive any
default and its consequences, without the consent of the holder
of each Security then outstanding and affected thereby, or (iii)
modify any provision of Section 6.01(c) (except to increase the
percentage of principal amount of securities required to rescind
and annul any declaration of amounts due and payable under the
Securities) without the consent of the holders of each Security
then outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may
in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular
series of Securities, or that modifies the rights of holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the holders of Securities of any other series.
It shall not be necessary for the consent of the
Securityholders of any series affected thereby under this Section
to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Securityholders of all
series affected thereby as their names and addresses appear upon
the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Securities of any series, affected by a
supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the
provisions of this Article, Article Two or Article Seven or of
Section 10.01, may bear a notation in form approved by the
Company, provided such form meets the requirements of any
exchange upon which such series may be listed, as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities of that series so modified as
to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of that
series then outstanding.
SECTION 9.05. The Trustee, subject to the provisions of
Section 7.01, shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to
this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under
the provisions of this Article to join in the execution thereof.
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01. Nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or merger of
the Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of all or
substantially all of the property of the Company or its successor
or successors as an entirety, or substantially as an entirety, to
any other corporation (whether or not affiliated with the Company
or its successor or successors) authorized to acquire and operate
the same; provided, however, the Company hereby covenants and
agrees that, upon any such consolidation, merger, sale,
conveyance, transfer or other disposition, the due and punctual
payment of the principal of (premium, if any) and interest on all
of the Securities of all series in accordance with the terms of
each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or
performed by the Company, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have
acquired such property.
SECTION 10.02. (a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the
principal of and premium, if any, and interest on all of the
Securities of all series outstanding and the due and punctual
performance of all of the covenants and conditions of this
Indenture or established with respect to each series of the
Securities pursuant to Section 2.01 to be kept or performed by
the Company with respect to each series, such successor
corporation shall succeed to and be substituted for the Company,
with the same effect as if it had been named herein as the party
of the first part, and thereupon (provided, that in the case of a
lease, the term of the lease is at least as long as the longest
maturity of any Securities outstanding at such time) the
predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities. Such
successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company or any
other predecessor obligor on the Securities, any or all of the
Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and,
upon the order of such successor company, instead of the Company,
and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall
deliver any Securities which previously shall have been signed
and delivered by the officers of the predecessor Company to the
Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the
execution hereof.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated with
the Company).
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE ELEVEN
DEFEASANCE AND CONDITIONS TO DEFEASANCE; UNCLAIMED MONIES
SECTION 11.01. Securities of a series may be defeased in
accordance with their terms and, unless the Company Order or
supplemental indenture establishing the series otherwise
provides, in accordance with this Article.
The Company at any time may terminate as to a series all of
its obligations for such series under this Indenture ("legal
defeasance option"). The Company at any time may terminate as to
a series its obligations, if any, under any restrictive covenant
which may be applicable to a particular series ("covenant
defeasance option"). However, in the case of the legal
defeasance option, the Company's obligations in Sections 2.05,
2.07, 4.02, 7.06, 7.10 and 11.04 shall survive until the
Securities of the series are no longer outstanding; thereafter
the Company's obligations in Sections 7.06, 7.10 and 11.04 shall
survive.
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option, a
series may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option, a series
may not be accelerated by reference to any restrictive covenant
which may be applicable to a particular series so defeased under
the terms of the series.
The Trustee, upon request of and at the cost and expense of
the Company, shall, subject to compliance with Section 13.06,
acknowledge in writing the discharge of those obligations that
the Company terminates.
The Company may exercise as to a series its legal defeasance
option or its covenant defeasance option if:
(1) The Company irrevocably deposits in trust with the
Trustee or another trustee (x) money in an amount which
shall be sufficient; or (y) Eligible Obligations the
principal of and the interest on which when due, without
regard to reinvestment thereof, will provide moneys, which,
together with the money, if any, deposited or held by the
Trustee or such other trustee, shall be sufficient; or (z) a
combination of money and Eligible Obligations which shall be
sufficient, to pay the principal of and premium, if any, and
interest, if any, due and to become due on such Securities
on or prior to maturity;
(2) the Company delivers to the Trustee a Certificate
to the effect that the requirements set forth in clause (1)
above have been satisfied;
(3) immediately after the deposit no Default exists;
and
(4) the Company delivers to the Trustee an Opinion of
Counsel to the effect that holders of the series will not
recognize income, gain or loss for Federal income tax
purposes as a result of the defeasance but will realize
income, gain or loss on the Securities, including payments
of interest thereon, in the same amounts and in the same
manner and at the same time as would have been the case if
such defeasance had not occurred and which, in the case of
legal defeasance, shall be (x) accompanied by a ruling of
the Internal Revenue Service issued to the Company or (y)
based on a change in law or regulation occurring after the
date hereof; and
(5) the deposit specified in paragraph (1) above shall
not result in the Company, the Trustee or the trust created
in connection with such defeasance being deemed an
"investment company" under the Investment Company Act of
1940, as amended.
In the event the Company exercises its option to effect a
covenant defeasance with respect to the Securities of any series
as described above and the Securities of that series are
thereafter declared due and payable because of the occurrence of
any Event of Default other than the Event of Default caused by
failing to comply with the covenants which are defeased, the
amount of money and securities on deposit with the Trustee may
not be sufficient to pay amounts due on the Securities of that
series at the time of the acceleration resulting from such Event
of Default. However, the Company shall remain liable for such
payments.
SECTION 11.02. All monies or Eligible Obligations deposited
with the Trustee pursuant to Section 11.01 shall be held in trust
and shall be available for payment as due, either directly or
through any paying agent (including the Company acting as its own
paying agent), to the holders of the particular series of
Securities for the payment or redemption of which such monies or
Eligible Obligations have been deposited with the Trustee.
SECTION 11.03. In connection with the satisfaction and
discharge of this Indenture all monies or Eligible Obligations
then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from
all further liability with respect to such monies or Eligible
Obligations.
SECTION 11.04. Any monies or Eligible Obligations deposited
with any paying agent or the Trustee, or then held by the
Company, in trust for payment of principal of or premium or
interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of
(and premium, if any) or interest on such Securities shall have
respectively become due and payable, upon the written request of
the Company and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law,
shall be repaid to the Company on May 31 of each year or (if then
held by the Company) shall be discharged from such trust; and
thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such monies or Eligible
Obligations, and the holder of any of the Securities entitled to
receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
SECTION 11.05. In connection with any satisfaction and
discharge of this Indenture pursuant to this Article Eleven, the
Company shall deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel to the effect that all conditions precedent
in this Indenture provided for relating to such satisfaction and
discharge have been complied with.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or
for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of
any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because
of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or
implied therefrom; and that any and all such personal liability
of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or
director as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.02. Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
SECTION 13.03. The Company by instrument in writing executed
by authority of two-thirds of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved
to the Company under this Indenture and thereupon such power so
surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein
any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by
the holders of Securities to or on the Company may be given or
served by being deposited first class postage prepaid in a post
office letter box addressed (until another address is filed in
writing by the Company with the Trustee), as follows: Kentucky
Power Company, 1701 Central Avenue, Ashland, Kentucky 41101, with
a copy to the Company in care of American Electric Power Service
Corporation, 1 Riverside Plaza, Columbus, Ohio 43215, Attention:
Treasurer. Any notice, election, request or demand by the
Company or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.05. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New
York, and for all purposes shall be construed in accordance with
the laws of said State.
SECTION 13.06. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture (other than the
certificate provided pursuant to Section 5.03(d) of this
Indenture) shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (3)
a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a
statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Company Order, or established in one or more
indentures supplemental to this Indenture, in any case where the
date of maturity of principal or an Interest Payment Date of any
Security or the date of redemption, purchase or repayment of any
Security shall not be a Business Day then payment of interest or
principal (and premium, if any) may be made on the next
succeeding Business Day with the same force and effect as if made
on the nominal date of maturity or redemption, and no interest
shall accrue for the period after such nominal date.
SECTION 13.08. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by the Trust Indenture Act, such imposed duties shall
control.
SECTION 13.09. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Securities of any series
shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
SECTION 13.11. The Company will have the right at all times
to assign any of its rights or obligations under the Indenture to
a direct or indirect wholly owned subsidiary of the Company;
provided that, in the event of any such assignment, the Company
will remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the
parties thereto.
SECTION 13.12. The Article and Section Headings in this
Indenture and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 13.13. Whenever this Indenture provides for (i) any
action by, or the determination of any rights of, holders of
Securities of any series in which not all of such Securities are
denominated in the same currency, or (ii) any distribution to
holders of Securities, in the absence of any provision to the
contrary in the form of Security of any particular series, any
amount in respect of any Security denominated in a currency other
than Dollars shall be treated for any such action, determination
of rights or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and
as of the record date with respect to Securities of such series
(if any) for such action, determination of rights or distribution
(or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of
rights or distribution) as the Company may specify in a written
notice to the Trustee or, in the absence of such written notice,
as the Trustee may determine.
Bankers Trust Company, as Trustee, hereby accepts the trusts
in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
KENTUCKY POWER COMPANY
By:___________________________
Treasurer
Attest:
By:___________________________
Assistant Secretary
BANKERS TRUST COMPANY,
as Trustee
By:___________________________
Vice President
Attest:
By:___________________________
Trust Officer
[H:\FINANCE\KPCO\EDDOCS\S3EXH-4A]
State of Ohio }
} ss:
County of Franklin }
On this ____ day of September, 1997, personally appeared
before me, a Notary Public within and for said County in the
State aforesaid, Armando A. Pena and John M. Adams, Jr., to me
known and known to me to be respectively the Treasurer and an
Assistant Secretary of KENTUCKY POWER COMPANY, one of the
corporations named in and which executed the foregoing
instrument, who severally acknowledged that they did sign and
seal said instrument as such Treasurer and Assistant Secretary
for and on behalf of said corporation and that the same is their
free act and deed as such Treasurer and Assistant Secretary,
respectively, and the free and corporate act and deed of said
corporation.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ____ day of September, 1997.
[Notarial Seal]
______________________________
Notary Public, State of ________
My Commission Expires: _________
[H:\FINANCE\KPCO\EDDOCS\S3EXH-4A]
State of ________ }
} ss:
County of _______ }
Be it remembered, that on this ____ day of September, 1997,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, Bankers Trust Company, one
of the corporations named in and which executed the foregoing
instrument, by _____________ one of its Vice Presidents, and by
________________, one of its Trust Officers, to me known and
known by me to be such Vice President and Trust Officer,
respectively, who severally duly acknowledged the signing and
sealing of the foregoing instrument to be their free act and
voluntary deed, and the free act and voluntary deed of each of
them as such Vice President and Trust Officer, respectively, and
the free act and voluntary deed of said corporation, for the uses
and purposes therein expressed and mentioned.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ____ day of September, 1997.
[Notarial Seal]
__________________________________
Notary Public, State of ________
My Commission Expires: ________
[H:\FINANCE\KPCO\EDDOCS\S3EXH-4A]