Proof of November 14, 1994 EXHIBIT NO. 4-2
NUI CORPORATION
To
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
as Trustee
_____________________
INDENTURE
Dated as of __________ __, 1994
______________________
TABLE OF CONTENTS
Page
ARTICLE ONE . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . . . . . 1
SECTION 101.Definitions. . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . 2
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Company Request" or "Company Order" . . . . . . . . . . . 2
"Corporate Trust Office" . . . . . . . . . . . . . . . . . 2
"Corporation" . . . . . . . . . . . . . . . . . . . . . . . 2
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . 2
"Depository" . . . . . . . . . . . . . . . . . . . . . . . 3
"Eligible Obligations" . . . . . . . . . . . . . . . . . . 3
"Event of Default" . . . . . . . . . . . . . . . . . . . . 3
"Excepted Encumbrances" . . . . . . . . . . . . . . . . . . 3
"Excepted Property" . . . . . . . . . . . . . . . . . . . . 3
"Exchange Act" . . . . . . . . . . . . . . . . . . . . . . 3
"Global Instrument" . . . . . . . . . . . . . . . . . . . . 3
"Government Obligations" . . . . . . . . . . . . . . . . . 3
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . 3
"Instrument" . . . . . . . . . . . . . . . . . . . . . . . 4
"Instrument Register" and "Instrument Registrar" . . . . . 4
"interest" . . . . . . . . . . . . . . . . . . . . . . . . 4
"Interest Payment Date" . . . . . . . . . . . . . . . . . . 4
"LIBOR Instrument" . . . . . . . . . . . . . . . . . . . . 4
"London Banking Day" . . . . . . . . . . . . . . . . . . 4
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . 4
"Notice of Default" . . . . . . . . . . . . . . . . . . . . 4
"Officers' Certificate" . . . . . . . . . . . . . . . . . . 4
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . 4
"Original Issue Discount Instrument" . . . . . . . . . . . 4
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . 4
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . 5
"Periodic Offering" . . . . . . . . . . . . . . . . . . . . 5
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Place of Payment" . . . . . . . . . . . . . . . . . . . . 5
"Predecessor Instrument" . . . . . . . . . . . . . . . . . 5
"Redemption Date" . . . . . . . . . . . . . . . . . . . . . 6
"Redemption Price" . . . . . . . . . . . . . . . . . . . . 6
"Regular Record Date" . . . . . . . . . . . . . . . . . . . 6
"SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Special Record Date" . . . . . . . . . . . . . . . . . . . 6
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . 6
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . 6
"Trust Indenture Act" . . . . . . . . . . . . . . . . . . . 6
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 102. Compliance Certificates and Opinions. . . . . . . 6
SECTION 103. Form of Documents Delivered to Trustee. . . . . . 7
i
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . 7
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . 8
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . 8
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . 9
SECTION 108. Effect of Headings and Table of Contents. . . . . 9
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . 9
SECTION 110. Separability Clause. . . . . . . . . . . . . . . 9
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . 9
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . 9
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . 10
SECTION 114. Incorporators, Stockholders, Officers and
Directors of the Company Exempt from Individual
Liability. . . . . . . . . . . . . . . . . . . . 10
SECTION 115. Duplicate Originals. . . . . . . . . . . . . . . 10
ARTICLE TWO . . . . . . . . . . . . . 10
Instrument Forms . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . 10
SECTION 202. Form of Trustee's Certificate of Authentication. 11
SECTION 203. Form of Legend for Global Instruments. . . . . . 11
ARTICLE THREE . . . . . . . . . . . . 12
The Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 301. Amount Unlimited, Issuable in Series . . . . . . 12
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . 14
SECTION 303. Execution, Authentication, Delivery and Dating. . 14
SECTION 304. Temporary Instruments . . . . . . . . . . . . . . 17
SECTION 305. Registration; Registration of Transfer and
Exchange. . . . . . . . . . . . . . . . . . . . . 17
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Instruments. . . . . . . . . . . . . . . . . . . 19
SECTION 307. Payment of Interest; Interest Rights Preserved. . 19
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . 20
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . 21
SECTION 310. Computation of Interest. . . . . . . . . . . . . 21
SECTION 311. CUSIP Numbers. . . . . . . . . . . . . . . . . . 21
ARTICLE FOUR . . . . . . . . . . . . . 22
Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . 22
SECTION 401. Satisfaction and Discharge. . . . . . . . . . . . 22
SECTION 402. Application of Trust Money. . . . . . . . . . . . 23
SECTION 403. Repayment to the Company. . . . . . . . . . . . . 24
ARTICLE FIVE . . . . . . . . . . . . . 24
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 501. Events of Default. . . . . . . . . . . . . . . . 24
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . 25
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . 27
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . 28
SECTION 505. Trustee May Enforce Claims Without Possession of
Instruments. . . . . . . . . . . . . . . . . . . 28
SECTION 506. Application of Money Collected. . . . . . . . . . 29
ii
Page
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . 29
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . 30
SECTION 509. Restoration of Rights and Remedies. . . . . . . . 30
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . 30
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . 30
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . 30
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . 31
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . 32
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . 32
ARTICLE SIX . . . . . . . . . . . . . 33
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 601. Certain Rights of Trustee. . . . . . . . . . . . 33
SECTION 602. Not Responsible for Recitals or Issuance of
Instruments. . . . . . . . . . . . . . . . . . . 34
SECTION 603. May Hold Instruments. . . . . . . . . . . . . . . 34
SECTION 604. Money Held in Trust. . . . . . . . . . . . . . . 34
SECTION 605. Compensation and Reimbursement. . . . . . . . . . 34
SECTION 606. Corporate Trustee Required; Eligibility. . . . . 35
SECTION 607. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . 35
SECTION 608. Acceptance of Appointment by Successor. . . . . . 37
SECTION 609. Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . . . 38
SECTION 610. Appointment and Qualification of Authenticating
Agent. . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SEVEN . . . . . . . . . . . . 40
Holders' Lists and Reports by Trustee and Company . . . . . . . . . . 40
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . 40
SECTION 702. Preservation of Information; Communications to
Holders. . . . . . . . . . . . . . . . . . . . . 40
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . 41
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . 41
ARTICLE EIGHT . . . . . . . . . . . . 42
Consolidation, Merger, Conveyance, Transfer, Sale or Lease . . . . . 42
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 802. Successor Corporation Substituted. . . . . . . . 42
ARTICLE NINE . . . . . . . . . . . . . 43
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 901. Supplemental Indentures Without Consent of
Holders. . . . . . . . . . . . . . . . . . . . . 43
SECTION 902. Supplemental Indentures with Consent of Holders. 44
SECTION 903. Execution of Supplemental Indentures. . . . . . . 45
SECTION 904. Effect of Supplemental Indentures. . . . . . . . 45
SECTION 905. Reference in Instruments to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . 45
iii
Page
SECTION 906. Conformity with Trust Indenture Act. . . . . . . 45
ARTICLE TEN . . . . . . . . . . . . . 46
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1001. Payment of Principal, Premium and Interest. . . . 46
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . 46
SECTION 1003. Money for Instrument Payments to Be Held in
Trust. . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1004. Corporate Existence. . . . . . . . . . . . . . . 47
SECTION 1005. Maintenance of Properties. . . . . . . . . . . . 48
SECTION 1006. Statement as to Compliance. . . . . . . . . . . . 48
SECTION 1007. Negative Pledge. . . . . . . . . . . . . . . . . 48
SECTION 1008. Waiver of Certain Covenants. . . . . . . . . . . 52
ARTICLE ELEVEN . . . . . . . . . . . . 52
Redemption of Instruments . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 1101. Applicability of Article. . . . . . . . . . . . . 52
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . 52
SECTION 1103. Selection by Trustee of Instruments to Be
Redeemed. . . . . . . . . . . . . . . . . . . . . 53
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . 53
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . 54
SECTION 1106. Instruments Payable on Redemption Date. . . . . . 54
SECTION 1107. Instruments Redeemed in Part. . . . . . . . . . . 54
ARTICLE TWELVE . . . . . . . . . . . . 55
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1201. Applicability of Article. . . . . . . . . . . . . 55
SECTION 1202. Satisfaction of Sinking Fund Payments with
Instruments. . . . . . . . . . . . . . . . . . . 55
SECTION 1203. Redemption of Instruments for Sinking Fund. . . . 55
iv
NUI CORPORATION
Reconciliation and Tie Sheet between Trust Indenture Act
of 1939 and Indenture, dated as of __________ __, 1994
Trust Indenture
Act Section
Indenture Section
310(a) (1) . . . . . . . . . . . . . . . . . . . . 606
(a) (2) . . . . . . . . . . . . . . . . . . . . 606
(a) (3) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(a) (4) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(a) (5) . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . . 603, 607
(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . 603
(b) . . . . . . . . . . . . . . . . . . . . 603
(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . 701, 702
(b) . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . 702
313(a) . . . . . . . . . . . . . . . . . . . . . 703
(b) (1) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(b) (2) . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . 703
314(a) (1) . . . . . . . . . . . . . . . . . . . . 704
(a) (2) . . . . . . . . . . . . . . . . . . . . 704
(a) (3) . . . . . . . . . . . . . . . . . . . . 704
(a) (4) . . . . . . . . . . . . . . . . . . . . . 1006
(b) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(c) (1) . . . . . . . . . . . . . . . . . . . . 102
(c) (2) . . . . . . . . . . . . . . . . . . . . 102
(c) (3) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(d) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(e) . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . 601
(c) . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . 514
v
316(a) (l) . . . . . . . . . . . . . . . . . . . . . 512, 513
(a) (2) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(b) . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . 104, 512, 513
902, 1008
317(a) (1) . . . . . . . . . . . . . . . . . . . . 503
(a) (2) . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . . . . . 107
This reconciliation and Tie Sheet shall not, for any purpose, be deemed to
be a part of the Indenture.
vi
INDENTURE, dated as of __________ __, 1994 between NUI Corporation,
a corporation duly organized and existing under the laws of the state of
New Jersey (herein called the "Company"), having its principal office at
550 Route 202-206, Bedminster, New Jersey 07921, and First Fidelity Bank,
National Association, a national bank organized, existing and authorized
to accept and execute trusts of the character herein set out under and by
virtue of the laws of the United States, as trustee (herein called the
"Trustee"), having its principal corporate trust office at Newark, New
Jersey.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Instruments"), unlimited as to principal amount, in one or more series as
in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939 and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such
provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Instruments by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Instruments or of any series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101.Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned
to them therein;
(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States as in effect from time to time; and
(4) The words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
1
Certain terms used principally in certain Articles are defined in those
Articles.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104 hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means the Person designated by the Trustee
which at the time shall be designated and acting pursuant to Section 610
hereof.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and which is delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which (i) is not a day on which banking institutions or trust
companies in The City of New York or any Place of Payment are generally
authorized or obligated by law, regulation or executive order to close and
(ii) if with respect to an Instrument issued pursuant to this Indenture
which is a LIBOR Instrument, is also a London Banking Day.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, an Executive Vice President, its Chief Financial Officer, its
Chief Accounting Officer or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and which is
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee,
any Authenticating Agent, or any Paying Agent, as the case may be, at
which at any particular time its corporate trust business shall be
administered. Until notice of change thereof is given as provided in this
Indenture, the Corporate Trust Office of the Trustee is located at 765
Broad Street, Newark, New Jersey 07102.
"Corporation" includes corporations and, except for purposes of
Article Eight hereof, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 307
hereof.
2
"Depository" means, with respect to the Instruments of any series
issuable or issued in the
form of one or more Global Instruments, the Person designated as
Depository by the Company pursuant to Section 301 hereof until a successor
Depository shall have been appointed pursuant to Section 305 hereof, and
thereafter "Depository" shall mean or include each Person who is then a
Depository hereunder.
"Eligible Obligations" means:
(1) with respect to Instruments denominated in United States
Dollars, Government Obligations; or
(2) with respect to Instruments denominated in a currency
other than United States Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to such
Instruments, as contemplated by Section 301 hereof.
"Event of Default" has the meaning specified in Section 501 hereof.
"Excepted Encumbrances" has the meaning specified in Section 1007
hereof.
"Excepted Property" has the meaning specified in Section 1007
hereof.
"Exchange Act" has the meaning specified in Section 303 hereof.
"Global Instrument" means an Instrument bearing the legend
specified in Section 203 hereof, evidencing all or part of a series of
Instruments, issued to the Depository for such series or its nominee, and
registered in the name of such Depository or nominee.
"Government Obligations" means:
(1) direct obligations of, or obligations the principal and
interest on which are unconditionally guaranteed by, the United
States of America entitled to the benefit of
full faith and credit thereof; and
(2) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations described in
clause (1) above or in any specific interest or principal payments due
in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a
bank or trust company subject to federal or state supervision or
examination with a combined capital and surplus of at least $50,000,000;
and provided, further, however, that except as may be otherwise required
by law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the full
amount received by such custodian in respect of such obligations or
specific payments and shall not be permitted to make any deduction
therefrom.
"Holder" means a Person in whose name an Instrument is registered
in the Instrument Register.
3
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and, with respect to any Instrument, by the terms and provisions of
such Instrument established pursuant to Section 301 hereof (as such terms
and provisions may be amended pursuant to the applicable provisions
hereof).
"Instrument" has the meaning stated in the first recital of this
Indenture and more particularly means any Instruments authenticated and
delivered pursuant to this Indenture.
"Instrument Register" and "Instrument Registrar" have the
respective meanings specified in Section 305 hereof.
"interest," when used with respect to an Original Issue Discount
Instrument which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Instrument,
means the Stated Maturity of an installment of interest on such
Instrument.
"LIBOR Instrument" means an Instrument bearing interest at a
floating rate determined by reference to a LIBOR interest rate basis.
"London Banking Day" means any day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
"Maturity," when used with respect to any Instrument, means the
date on which the principal of such Instrument or an installment of
principal becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Notice of Default" has the meaning specified in Section 501
hereof.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President, an Executive Vice President, the Chief
Financial Officer, the Chief Accounting Officer or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, that complies with the requirements of Section
314(e) of the Trust Indenture Act and which is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or counsel for the Company, that complies with the
requirements of Section 314(e) of the Trust Indenture Act and which is
delivered to the Trustee.
"Original Issue Discount Instrument" means any Instrument 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 502 hereof.
"Outstanding," when used with respect to Instruments, means as of
the date of determination, all Instruments theretofore authenticated and
delivered under this Indenture, except:
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(1) Instruments theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Instruments for whose payment or redemption money and/or
Eligible Obligations in the necessary amount have theretofore been
deposited in trust with the Trustee or any Paying Agent (other than the
Company) or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Instruments; provided that, if such Instruments are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(3) Instruments which have been paid pursuant to Section 306
hereof or in exchange for or in lieu of which other Instruments have been
authenticated and delivered pursuant to this Indenture, other than any
such Instruments in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Instruments are held by a
bona fide purchaser in whose hands such Instruments are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Instruments have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, (1) the principal amount of an Original Issue Discount
Instrument that shall be deemed to be Outstanding shall be equal to the
amount of the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502 hereof, and (2) Instruments owned by the Company
or any other obligor upon the Instruments or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Instruments which the Trustee
knows to be so owned shall be so disregarded. Instruments so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Instruments and that the pledgee is not the
Company or any other obligor upon the Instruments or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Instruments on
behalf of the Company.
"Periodic Offering" means an offering of Instruments of a series
from time to time, the specific terms of which Instruments, including,
without limitation, the rate or rates of interest, if any, thereon, the
Stated Maturity or Maturities thereof and the redemption provision, if
any, with respect thereto, are to be determined by the Company or its
agents upon the issuance of such Instruments.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or other entity or government or any agency or political
subdivision thereof.
"Place of Payment" when used with respect to Instruments of any
series means the place or places where the principal of (and premium, if
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any) or interest on the Instruments of such series is payable, which place
shall be, unless otherwise specified pursuant to Section 301 hereof, the
corporate trust office of the Trustee in Philadelphia, Pennsylvania.
"Predecessor Instrument" of any particular Instrument means every
previous Instrument evidencing all or a portion of the same debt as that
evidenced by such particular Instrument; and, for the purposes of this
definition, any Instrument authenticated and delivered under Section 306
hereof in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Instrument shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Instrument.
"Redemption Date," when used with respect to any Instrument or
portion thereof to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Instrument or
portion thereof to be redeemed, means the price at which it is to be
redeemed as determined by or pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Instruments of any series means the date specified for
that purpose as contemplated by Section 301 hereof.
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after
the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307 hereof.
"Stated Maturity," when used with respect to any Instrument or any
installment of principal thereof or interest thereon, means the date
specified in such Instrument as the fixed date on which the principal of
such Instrument or such installment of principal thereof or interest
thereon is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting capital stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, and
any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended
or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the SEC under or in furtherance of the
purposes of such act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Instruments of any series shall mean
the Trustee with respect to the Instruments of such series.
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SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Each
such Officers' Certificate and Opinion of Counsel shall comply with
Section 314(e) of the Trust Indenture Act.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, public
officials or an officer or officers of the Company, provided that any
certificate or opinion of, or representation by, an officer affecting the
Company shall state that the information with respect to such factual
matters is in the possession of the Company, unless such counsel actually
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, demands, authorizations, directions, notices,
waivers, consents, certificates, statements, opinions or other instruments
under this Indenture, such instruments may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is
7
hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as an "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her
the execution thereof. Where such execution is by a signer acting in a
capacity other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her authority
to so execute such instrument or writing. The fact and date of the
execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
The ownership of Instruments shall be proved by the Instrument
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Instrument shall bind every
future Holder of the same Instrument and the Holder of every Instrument
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee, any Instrument Registrar, any Paying Agent or the
Company in reliance thereon, whether or not notation of such action is
made upon such Instrument.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to sign any instrument
evidencing or embodying an Act of the Holders. If a record date is fixed,
those Persons who were Holders at such record date (or their duly
appointed agents), and only those Persons, shall be entitled to sign any
such instrument evidencing or embodying an Act of the Holders or to revoke
any such instrument previously signed, whether or not such Persons
continue to be Holders after such record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Except as otherwise specifically provided herein, any request,
demand, authorization, direction, notice, consent, waiver or other Act of
the Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) The Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust
Administration; or
(2) The Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
8
herein expressly provided) if in writing and mailed, first-
class postage prepaid, to the Company addressed to it at 550
Route 202-206, Bedminster, New Jersey 07921, Attention:
Corporate Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to the Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to each Holder affected by such event, at such Holder's address as it
appears in the Instrument Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to the Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by the Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In any case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
hereof are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Instruments shall
be, or be deemed to be, invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof and thereof
shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
9
Nothing contained in this Indenture or in the Instruments, express
or implied, shall give to any Person, other than the parties hereto, any
Paying Agent, any Instrument Registrar, any Authenticating Agent and their
respective successors hereunder, and the Holders of Instruments, any
benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
This Indenture and the Instruments shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Instrument shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the
Instruments) payment of principal of (and premium, if any, on) and
interest on such Instrument need not be made on such date, but may be made
on the next succeeding Business Day (and without any interest or other
payment in respect of such delay) except that, with respect to any
Interest Payment Date, if such Instrument is a LIBOR Instrument and such
succeeding Business Day is in the next succeeding calendar month, such
payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on the Interest Payment
Date, Redemption Date or at the Stated Maturity.
SECTION 114. Incorporators, Stockholders, Officers and Directors of
the Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture or any indenture supplemental hereto or of any Instrument
or for any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder or
under any indenture supplemental hereto 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 successor corporation,
because of the creation of the indebtedness hereby authorized, under any
indenture supplemental hereto or under or by reason of the obligations,
covenants or agreements contained in this Indenture, under any indenture
supplemental hereto, or in any of the Instruments 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, under any indenture
supplemental hereto or in any of the Instruments or implied therefrom are
hereby expressly waived and released as a condition of, and as
consideration for, the execution of this Indenture and the issuance of
such Instruments.
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SECTION 115. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the
same agreement.
ARTICLE TWO
Instrument Forms
SECTION 201. Forms Generally.
The Instruments of each series shall be in substantially the form
as shall be established in or pursuant to Board Resolutions or Officers'
Certificates pursuant to Board Resolutions or in one or more indentures
supplemental hereto, in each case, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by this Indenture or such indentures supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any
applicable law or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Instruments, as evidenced by their execution of the Instruments. If the
form of Instruments of any series is established by action taken pursuant
to Board Resolutions or Officers' Certificates pursuant to Board
Resolutions, such Officers' Certificates, if any, setting forth such form,
together with the Board Resolutions, shall be delivered to the Trustee and
any Authenticating Agent at or prior to the delivery of the Company Order
contemplated by Section 303 hereof for the authentication and delivery of
such Instruments.
The definitive Instruments shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of
any securities exchange on which the Instruments may be listed, all as
determined by the officers executing such Instruments, as evidenced by
their execution of such Instruments. In addition, any definitive Global
Instruments may also be typewritten or mimeographed as determined by the
officers executing such Global Instruments, as evidenced by their
execution of such Global Instruments.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 610 hereof, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Instruments of the series designated herein
referred to in the within-mentioned Indenture.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION,
as Trustee
By __________________________
Authorized Signatory
SECTION 203. Form of Legend for Global Instruments.
11
Any Global Instrument authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Instrument is a Global Instrument within the meaning of the
Indenture hereinafter referred to and is registered in the name of
a Depository or a nominee of a Depository. This Instrument is
exchangeable for Instruments registered in the name of a Person
other than the Depository or its nominee only in the limited
circumstances described in such Indenture, and no transfer of this
Instrument (other than a transfer of this Instrument as a whole by
the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the
Depository) may be registered except in such limited
circumstances."
ARTICLE THREE
The Instruments
SECTION 301. Amount Unlimited, Issuable in Series
The aggregate principal amount of Instruments which may be
authenticated and delivered under this Indenture is unlimited. The
Instruments may be issued from time to time in one or more series.
There shall be established in or pursuant to Board Resolutions, or
Officers' Certificates pursuant to Board Resolutions, or established in
one or more indentures supplemental hereto, prior to the issuance of
Instruments of any series:
(1) the title of the Instruments of such series (which
shall distinguish the Instruments of such series from all
other Instruments);
(2) any limit upon the aggregate principal amount of
the Instruments of such series which may be authenticated
and delivered under this Indenture (except for Instruments
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Instruments of
such series pursuant to Section 304, 305, 306, 905 or 1107);
(3) the price or prices at which the Instruments of such
series will be offered by the Company (such price or prices to be
expressed as a percentage of the principal amount of the
Instruments of such series);
(4) the Person or Persons (without specific
identification) to whom interest on Instruments of such
series shall be payable on any Interest Payment Date, if
other than the Person in whose name that Instrument (or one
or more Predecessor Instruments) is registered at the close
of business on the Regular Record Date for such interest;
(5) the date or dates on which the Instruments of such
series may be issued and on which the principal of (and
premium, if any, on) the Instruments of such series is
payable;
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(6) the rate or rates per annum (which may be fixed or
floating) at which the Instruments of such series shall bear
interest, if any, or the method or methods, if any, by which
such rate or rates are to be determined, the date or dates
from which such interest, if any, shall accrue, the Interest
Payment Dates, if any, on which such interest shall be
payable, the Regular Record Dates, if any, for the interest
payable on any Interest Payment Date, the rate or rates of
interest, if any, payable on overdue installments of
principal of (and premium, if any, on) or interest on the
Instruments of such series and the basis upon which interest
shall be calculated if other than a 360-day year of twelve
30-day months;
(7) any index or other method used to determine the amounts
of principal of (and premium, if any, on) and interest, if any on
the Instruments of such series;
(8) if in addition to or other than the Borough of
Manhattan, The City of New York, the place or places where
(a) the principal of (and premium, if any, on) and interest,
if any, on the Instruments of such series shall be payable,
(b) any of such Instruments may be surrendered for
registration of transfer or exchange and (c) notices or
demands to or upon the Company in respect of such
Instruments and this Indenture may be served; provided,
however, that, at the option of the Company, any payment on
such Instruments (other than Global Instruments) may be paid
by check mailed to the address of the Person entitled
thereto as such address shall appear in the Instrument
Register on the date of Maturity, with respect to payments
of principal or premium (if any), and on the applicable
Regular Record Date, with respect to payments of interest;
provided further, however, that payment of interest due on
Global Instruments will be made in immediately available
funds to the Depository for Global Instruments;
(9) if the Instruments of such series are redeemable
or repayable at the option of the Company, the period or
periods within which, the price or prices at which and the
terms and conditions upon which such Instruments may be
redeemed or repaid in whole or in part;
(10) the obligation, if any, of the Company to redeem
or purchase Instruments of such series pursuant to any
sinking fund or analogous provisions or at the option of any
Holder thereof and the period or periods within which, the
price or prices at which and the other terms and conditions
upon which such Instruments shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(11) if any of the Instruments of such series are
issuable upon original issuance in whole or in part in the
form of one or more Global Instruments, the Depository for
such Global Instrument or Instruments and the circumstances,
if any, under which any such Global Instrument may be
exchanged for Instruments registered in the name of, and any
transfer of such Global Instrument may be registered to, a
13
Person other than such Depository or its nominee, if other
than as set forth in Section 305 hereof;
(12) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Instruments of such series shall be issuable;
(13) if other than the principal amount thereof, the
portion of the principal amount of Instruments of such
series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502
hereof or the method by which such portion is to be
determined;
(14) any Events of Default with respect to Instruments
of such series if not set forth herein; and
(15) any other terms, conditions, rights and
preferences (or limitations on such rights and preferences)
relating to Instruments of such series.
All Instruments of any one series shall be substantially identical
except as to denomination, number and except as may otherwise be provided
in or pursuant to Board Resolutions or Officers' Certificates pursuant to
Board Resolutions or in one or more indenture supplemental hereto.
With respect to Instruments of a series subject to a Periodic
Offering, such Board Resolutions or Officers' Certificates or indentures
supplemental hereto may provide general terms or parameters for the
Instruments of such series and provide either that the specific terms of
particular Instruments of such series shall be specified in a Company
Order or that such terms shall be determined by the Company or its agents
in accordance with a Company Order as contemplated by the proviso of the
third paragraph of Section 303 hereof.
SECTION 302. Denominations.
The Instruments of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as
contemplated by Section 301 hereof. In the absence of any such provisions
with respect to the Instruments of any series, the Instruments of such
series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Instruments shall be executed on behalf of the Company by its
Chairman of the Board, its President, an Executive Vice President, its
Chief Financial Officer, its Chief Accounting Officer or a Vice President,
under its corporate seal reproduced thereon attested by its Secretary or
an Assistant Secretary. The signature of any of these officers on the
Instruments may be manual or facsimile.
Instruments bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery
14
of such Instruments or did not hold such offices at the initial issuance
date of such Instruments.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Instruments of any series
executed by the Company to the Trustee for authentication, together with
the Board Resolutions or the Officers' Certificates pursuant to Board
Resolutions, or the supplemental indenture with respect to such
Instruments referred to in Section 301 hereof and a Company Order for the
authentication and delivery of such Instruments; provided, however, that,
with respect to such Instruments of a series subject to a Periodic
Offering, (1) such Company Order may be delivered by the Company to the
Trustee prior to the delivery to the Trustee of such Instruments for
authentication and delivery; (2) the Trustee shall authenticate and make
available for delivery Instruments of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, all pursuant to a Company
Order or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order; (3) the maturity date or
dates, original issue date or dates, interest rate or rates and any other
terms of Instruments of such series shall be determined by Company Order
or pursuant to such procedures; and (4) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly
authorized agent or agents, which oral instructions shall be promptly
confirmed in writing. The Trustee, in accordance with such Company Order,
shall authenticate and make available for delivery such Instruments as in
this Indenture provided and not otherwise. If the form or forms or terms
of the Instruments of the series have been established in or pursuant to
one or more Board Resolutions or Officer's Certificates pursuant to Board
Resolutions or supplemental indentures each as permitted by Sections 201
and 301 hereof, in authenticating such Instruments, and accepting the
additional responsibilities under this Indenture in relation to such
Instruments, the Trustee shall be entitled to receive, and (subject to
Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel substantially stating
that:
(1) the form or forms and terms of such Instruments have been
established in conformity with the provisions of this Indenture;
(2) all conditions precedent described herein to the
authentication and delivery of such Instruments have been complied
with and that such Instruments, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except as the same may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws
relating to or affecting the enforcement of creditors' rights
generally and except to the extent that enforcement thereof may be
limited by the application of general principles of equity; and
(3) to such counsel's knowledge, all laws and governmental
requirements in respect of the execution and delivery by the
Company of such Instruments have been complied with;
15
provided, however, that with respect to Instruments of a series subject to
a Periodic Offering, the Trustee shall be entitled to receive such Opinion
of Counsel only once at or prior to the time of the first authentication
of Instruments of such series and that the opinions described in clauses
(1) and (2) above may, alternatively, state respectively,
(x) that, when the terms of such Instruments shall have
been established pursuant to a Company Order or pursuant to
such procedures as may be specified from time to time by a
Company Order, all as contemplated by and in accordance with
Board Resolutions or Officers' Certificates pursuant to
Board Resolutions or one or more indentures supplemental
hereto, as the case may be, such terms will have been duly
authorized by the Company and will have been established in
conformity with the provisions of this Indenture; and
(y) that such instruments, when (i) executed by the
Company, (ii) authenticated and delivered by the Trustee in
accordance with this Indenture, (iii) issued and delivered
by the Company, and (iv) paid for, all as contemplated by
and in accordance with the aforesaid Company Order or
specified procedures, as the case may be, will have been
duly issued under this Indenture and will constitute legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as the same may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally and
except to the extent that enforcement thereof may be limited
by the application of general principles of equity.
With respect to Instruments of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company
of any such Instruments, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and other documents delivered pursuant to Sections 201 and 301
hereof and this Section, as applicable, at or prior to the time of the
first authentication of Instruments of such series unless and until such
opinion or other documents have been superseded or revoked or the Trustee
shall have actual knowledge that such opinion or other documents are
erroneous in any material manner. In connection with the authentication
and delivery of Instruments of a series subject to a Periodic Offering,
the Trustee shall be entitled to assume that the Company's instructions to
authenticate and deliver such instruments do not violate any rules,
regulations or orders of any governmental agency or commission having
jurisdiction over the Company unless and until the Trustee shall have
actual knowledge that such instructions do violate such rules, regulations
or orders.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Instruments if the issue of such
Instruments pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Instruments and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee or
if the Trustee, being advised by counsel, determines that such action may
not lawfully be taken.
16
If the Company shall establish pursuant to Section 301 hereof that
the Instruments of a series are to be issued in whole or in part in the
form of one or more Global Instruments, then the Company shall execute,
and the Trustee, shall, in accordance with this Section and a Company
Order for the authentication and delivery of a Global Instrument or
Instruments of such series, authenticate and make available for delivery
one or more Global Instruments that (1) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount
of the Outstanding Instruments of such series to be represented by such
Global Instrument or Instruments, (2) shall be registered in the name of
the Depository for such Global Instrument or Instruments or the nominee of
such Depository and (3) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instructions.
Each Depository designated pursuant to Section 301 hereof as the
Depository for the Instruments of series issuable in whole or in part in
the form of Global Instruments must, at the time of its designation and at
all times while it serves as Depository, be a clearing agency registered
under the Securities Exchange Act of 1934 (the "Exchange Act").
Each Instrument shall be dated the date of its authentication.
No Instrument shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Instrument a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature. Such
certificate upon any Instrument shall be conclusive evidence, and the only
evidence, that such Instrument has been duly authenticated and delivered
hereunder.
Notwithstanding the foregoing, if any Instrument shall have been
duly authenticated and delivered hereunder but never issued and sold by
the Company, and the Company shall deliver such Instrument to the Trustee
for cancellation as provided in Section 309 hereof together with a written
statement (which need not comply with Section 102 hereof and need not be
accompanied by an Opinion of Counsel) stating that such Instrument has
never been issued and sold by the Company, for all purposes of this
Indenture such Instrument shall be deemed never to have been authenticated
and delivered hereunder and shall not be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Instruments.
Pending the preparation of definitive Instruments of any series,
the Company may execute and deliver to the Trustee and, upon Company
Order, the Trustee shall authenticate and make available for delivery,
temporary Instruments which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Instruments in lieu of which
they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company
executing such Instruments may determine, as evidenced by their execution
of such Instruments. Such temporary Instruments may be Global
Instruments.
If temporary Instruments of any series are issued, the Company
shall cause definitive Instruments of that series to be prepared without
unreasonable delay. After the preparation of definitive Instruments of
17
such series, the temporary Instruments of such series shall be
exchangeable for definitive Instruments of such series upon surrender of
the temporary Instruments of such series at any office or agency of the
Company designated pursuant to Section 1002 hereof without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Instruments of any series, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Instruments of the same series of
authorized denominations. Until so exchanged the temporary Instruments of
any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Instruments of such series.
SECTION 305. Registration; Registration of Transfer and Exchange.
With respect to each series of Instruments, the Company shall cause
to be kept at one of the offices or agencies to be maintained by the
Company as provided in Section 1002 hereof a register (herein sometimes
referred to as the "Instrument Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for
the registration of that series of Instruments and of transfers and
exchanges of that series of Instruments. Such office or agency shall be
the "Instrument Registrar" for that series of Instruments. In the event
that the Trustee shall not be the Instrument Registrar, the Instrument
Register and the records of the Instrument Registrar relating to the
performance of its duties as such shall be open for inspection by the
Trustee at all reasonable times. The Trustee is hereby initially
appointed as Instrument Registrar for each series of Instruments.
Upon surrender for registration of transfer of any Instrument of
any series at said office or agency for that series, the Company shall
execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or
more new Instruments of the same series of any authorized denominations,
of a like tenor and aggregate principal amount.
At the option of the Holder, Instruments of any series may be
exchanged for other Instruments of the same series, of any authorized
denominations, of a like tenor and aggregate principal amount, upon
surrender of the Instruments to be exchanged at any office or agency for
such series. Whenever any Instruments are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Instruments which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing and except as otherwise provided in
or pursuant to this Indenture, any Global Instrument shall be exchangeable
pursuant to this Section 305 or Sections 304, 306, 905 and 1107 hereof for
Instruments registered in the name of, and a transfer of a Global
Instrument of any series may be registered to, any Person other than the
Depository for such Instrument or its nominee only if (1) such Depository
notifies the Company that it is unwilling or unable to continue as
Depository for such Global Instrument or if at any time such Depository
ceases to be a clearing agency registered under the Exchange Act and the
Company within 90 days after receiving such notice or becoming aware that
the Depository is no longer so registered, does not appoint a successor
Depository for such Global Instrument, (2) the Company executes and
delivers to the Trustee a Company Order to the effect that such Global
Instrument shall be so exchangeable and the transfer thereof so
18
registrable or (3) there shall have occurred and be continuing with
respect to the Instruments of such series, an Event of Default or an event
which after notice or lapse of time would be an Event of Default. Upon
the occurrence in respect of any Global Instrument of any series of any
one or more of the conditions specified in clauses (1), (2) or (3) of the
preceding sentence or such other conditions as may be specified as
contemplated by Section 301 hereof for such series, (a) such Global
Instrument may be exchanged in accordance with the foregoing provisions of
this Section 305 for an Instrument which is not a Global Instrument and
(b) in accordance with the foregoing provisions of this Section 305 the
transfer of such Global Instrument may be registered to such Persons
(including, without limitation, Persons other than the Depository with
respect to such series and its nominees) as such Depository shall
designate, and the new Instrument or Instruments authenticated and
delivered upon such registration of transfer shall not bear the legend
specified in Section 203 hereof. Notwithstanding any other provision of
this Indenture, any Instrument authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global
Instrument shall also be a Global Instrument and shall bear the legend
specified in Section 203 hereof except for any Instrument authenticated
and delivered in exchange for, or upon registration of transfer of, a
Global Instrument pursuant to the preceding sentence.
All Instruments issued upon any registration of transfer or
exchange of Instruments shall be the valid obligations of the Company,
evidencing the same debt, and entitling the Holders thereof to the same
benefits under this Indenture, as the Instruments surrendered upon such
registration of transfer or exchange.
Every Instrument presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee or the Instrument Registrar for such series of Instruments) be
duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Instrument Registrar (and, if so
required by the Trustee, to the Trustee) duly executed, by the Holder
thereof or his or her attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Instruments, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Instruments, other than exchanges expressly provided in this Indenture to
be made at the Company's own expense or without expense or without charge
to Holders.
The Company shall not be required to (1) issue, register the
transfer of or exchange any Instrument of any series during the period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Instruments of that series selected for
redemption under Section 1103 hereof and ending at the close of business
on the day of such mailing, or (2) register the transfer of or exchange
any Instrument so selected for redemption in whole or in part, except the
unredeemed portion of Instruments of that series being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Instruments.
If there shall be delivered to the Company and the Trustee (1) a
mutilated Instrument or evidence to their satisfaction of the destruction,
19
loss or theft of any Instrument and (2) such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Instrument has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Instrument, a new Instrument of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Instrument
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Instrument, pay such Instrument.
Upon the issuance of any new Instrument under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including, without limitation, the fees and expenses of
the Trustee) connected therewith.
Every new Instrument of any series issued pursuant to this Section
in exchange for a mutilated Instrument or in lieu of any destroyed, lost
or stolen Instrument shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Instrument shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Instruments of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Instruments.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 hereof
with respect to the Instruments of any series, interest on any Instrument
which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that
Instrument (or one or more Predecessor Instruments) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Instrument of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable
to the Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (l) or (2)
below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Instruments of such series (or their respective Predecessor
Instruments) 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 Instrument of
such series and the date of proposed payment, and at the
20
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 provided in this
Clause. Thereupon, the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Instruments of such series at
such Holder's address as it appears in the Instrument
Register, 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 so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Instruments of such series (or their
respective Predecessor Instruments) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Instruments of any series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Instruments 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.
Subject to the foregoing provisions of this Section, each
Instrument delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Instrument shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried
by such other Instrument.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of an Instrument for registration of
transfer, the Company, the Trustee, any Paying Agent, any Authenticating
Agent and any other agent of the Company or the Trustee may treat the
Person in whose name such Instrument is registered in the Instrument
Register as the owner of such Instrument for the purpose of receiving
payment of principal of (and premium, if any on) and (subject to Section
307 hereof) interest on such Instrument and for all other purposes
whatsoever, whether or not any payment with respect to such Instrument be
overdue, and neither the Company, the Trustee, any Paying Agent, any
Authenticating Agent nor any other agent of the Company or the Trustee
shall be affected by notice to the contrary.
21
None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent or any other agent of the Company or the Trustee will
have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests
in a Global Instrument or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests, and they shall be
fully protected in acting or refraining from acting on any information
provided by the Depository.
Notwithstanding the foregoing, with respect to any Global
Instrument, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by a Depository or
impair, as between a Depository and holders of beneficial interests in any
Global Instrument, the operation of customary practices governing the
exercise of the rights of the Depository or its nominee as Holder of such
Global Instrument.
SECTION 309. Cancellation.
All Instruments surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any sinking fund payment,
if any, shall, if surrendered to the Company, any Paying Agent, any
Authenticating Agent or any other agent of the Company, be delivered to
the Trustee or the Instrument Registrar and, if not already canceled,
shall be promptly canceled by it. The Company may at any time deliver to
the Trustee or the Instrument Registrar for cancellation any Instruments
previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Instruments so delivered
shall be promptly canceled by the Trustee or the Instrument Registrar. No
Instrument shall be authenticated in lieu of or in exchange for any
Instruments canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Instruments held by the Trustee
or by the Instrument Registrar shall be promptly destroyed and a
certificate of destruction shall be delivered to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 hereof
for Instruments of any series, interest on the Instruments of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Instruments may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to the Holders; provided,
however, that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Instruments or
as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Instruments, and
any such redemption shall not be affected by any defect in or omission of
such numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge.
22
Any Instrument or Instruments, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, the entire indebtedness of the Company in respect thereof shall
be deemed to have been satisfied and discharged and, if (a) all
Instruments issued under and outstanding pursuant to this Indenture have
been paid or shall have been deemed paid and (b) the Company so elects,
this Indenture shall be discharged and canceled and shall cease to be of
any further effect (except as specifically provided for in this Section
401), if there shall have been irrevocably deposited with the Trustee, in
trust:
(1) money in an amount which shall be sufficient; or
(2) in the case of a deposit made prior to the
Maturity of such Instruments or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee, shall be sufficient;
or
(3) a combination of (1) or (2) which shall be
sufficient,
to pay when due the principal of and premium, if any, and interest, if
any, due and to become due on such Instruments or portions thereof;
provided, however, that in the case of the provision for payment or
redemption of less than all the Instruments of any series, such
Instruments or portions thereof shall have been selected by the Instrument
Registrar as provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company to the Trustee
to give such notice, under arrangements satisfactory to the Trustee; and
provided, further, however, that the Company shall have delivered to the
Trustee:
(x) if such deposit shall have been made prior to the
Maturity of such Instruments, a Company Order stating that
the money and Eligible Obligations deposited with the
Trustee in accordance with this Section shall be held by the
Trustee, in trust, as provided in Section 402; and
(y) if Eligible Obligations shall have been deposited
with the Trustee, an opinion of an independent public
accountant of nationally recognized standing, selected by
the Company, to the effect that the requirements set forth
in clause (2) above have been satisfied.
Upon receipt by the Trustee of money or Eligible Obligations, or
both, in accordance with this Section, together with the documents
required by clauses (x) and (y) above, the Trustee shall, upon receipt of
a Company Request, acknowledge in writing that the Instrument or
Instruments or portions thereof with respect to which such deposit was
made are deemed to have been paid for all purposes of this Indenture, that
the entire indebtedness of the Company in respect thereof is deemed to
have been satisfied and discharged and, if (a) all Instruments issued
23
under and outstanding pursuant to this Indenture have been paid or shall
have been deemed paid and (b) the Company so elects in such Company
Request, this Indenture shall be discharged and canceled and shall cease
to be of any further effect (except as specifically provided for in this
Section 401).
If payment at Stated Maturity of less than all of the Instruments
of any series is to be provided for in the manner and with the effect
provided in this Section, the Instrument Registrar shall select such
Instruments, or portions of principal amount thereof, in the manner
specified by Section 1103 hereof for selection for redemption of less than
all the Instruments of a series.
In the event that Instruments which shall be deemed to have been
paid as provided in this Section 401 do not mature and are not to be
redeemed within the sixty (60) day period commencing with the date of the
deposit with the Trustee of moneys or Eligible Obligations, as aforesaid,
the Company shall, as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such Instruments, to the
Holders of such Instruments to the effect that such deposit has been made
and the effect thereof.
Notwithstanding the satisfaction and discharge of any Instruments
as aforesaid, the obligations of the Company and the Trustee in respect of
such Instruments under Sections 112, 304, 305, 306, 605, 607, 608, 610,
1002, 1003, 1104, 1203 (as to notice of redemption) hereof and this
Article Four shall survive.
The Company shall pay, and shall indemnify the Trustee and each
Holder of Instruments which are deemed to have been paid as provided in
this Section against, any tax, fee, or other charge imposed on or assessed
against the Eligible Obligations deposited with the Trustee or the
principal or interest received by the Trustee in respect of such Eligible
Obligations.
Anything herein to the contrary notwithstanding, if, at any time
after an Instrument would be deemed to have been satisfied or discharged
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it, as aforesaid, to
the Company or its representative under any applicable Federal or State
bankruptcy, insolvency, or other similar law, the indebtedness of the
Company in respect of such Instrument shall thereupon be deemed
retroactively not to have been satisfied and discharged and this Indenture
to not have been discharged and canceled and to not have ceased to be of
any further effect, as aforesaid, and to remain Outstanding.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003
hereof, all money deposited with the Trustee pursuant to Section 401
hereof shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including, without limitation, the
Company acting as its own Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of all sums due and to become due with
respect to Instruments for which such money has been deposited for
principal of (and premium, if any, on) and interest on such Instruments
24
but such money need not be segregated from other funds except to the
extent required by law.
SECTION 403. Repayment to the Company.
Upon termination of the trust established pursuant to Section 401
hereof, the Trustee and the Paying Agent shall promptly pay to the Company
any excess money or Eligible Obligations held by them.
ARTICLE FIVE
Default
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to
Instruments of any series, means any one of the following events:
(1) failure to pay any interest on any Instrument of
such series within 30 days after the same becomes due and
payable; or
(2) failure to pay the principal of or premium, if
any, on any Instrument of such series at its Maturity; or
(3) failure to perform in any material respect or
breach of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in
the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of
one or more series of Instruments other than such series),
and continuance of such failure or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Instruments of such
series, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder, or in the case of any
such failure or breach which can be cured but which cannot,
with reasonable diligence, be cured within such 90-day
period, failure of the Company to proceed with reasonable
diligence after receipt of such notice; or
(4) the entry by a court having jurisdiction in the
premises of (a) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (b) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company, or
ordering the winding up or liquidation of its affairs, and
any such decree or order for relief or any such other decree
25
or order shall have remained unstayed and in effect for a
period of 90 consecutive days; or
(5) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization, or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization, or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the consent by it to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator, or
other similar official of the Company, or the making of it
by an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the authorization of such
action by the Board of Directors; or
(6) a default under any bond, debenture, note, or
other evidence of indebtedness by the Company (including,
without limitation, a default with respect to Instruments of
any series) or a default under any mortgage, indenture or
instrument under which there may be issued or by which there
may be secured or evidenced any indebtedness by the Company
(including, without limitation, this Indenture), in each
case in excess of $10,000,000 aggregate principal amount,
whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay any
portion of the principal of such indebtedness when due and
payable after the expiration of any applicable grace period
with respect thereto or shall have resulted in such
indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become
due and payable, if (a) there shall have been given, by
registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Outstanding
Instruments of any series a written notice specifying such
default and requiring the Company to cause such indebtedness
to be discharged or cause such acceleration to be rescinded
or annulled and (b) within a period of 10 days after said
notice is given to the Company, such indebtedness is not
discharged or such acceleration is not rescinded or
annulled; or
(7) any other Event of Default specified with respect
to Instruments of such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Outstanding Instruments of
any series occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 33% in aggregate principal amount
of the Outstanding Instruments of that series may declare the principal
(or, if the Instruments of that series are Original Issue Discount
26
Instruments, such portion of the principal as may be specified in the
terms of that series) of all the Instruments of that series to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such
principal (or specified portion thereof) shall become immediately due and
payable; provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series of
Instruments, the Trustee or the Holders of not less than 33% in aggregate
principal amount of the Outstanding Instruments of all such series,
considered as one class, may make such declaration of acceleration, and
not the Holders of the Instruments of any one of such series. Upon
payment of such amount, all obligations of the Company in respect of the
payment of principal of the Instruments of such series shall terminate.
At any time after such a declaration of acceleration with respect
to Instruments of any series has been made and before a judgment or decree
for payment of the money due based on such acceleration has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Instruments of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) The Company has paid or deposited with the Trustee
a sum sufficient to pay:
(a) all overdue installments of interest on
all Instruments of that series,
(b) the principal of (and premium, if any,
on) any Instruments of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates borne by or provided for in such
Instruments,
(c) to the extent that payment of such
interest is lawful, interest upon overdue
installments of interest at the rate or rates
borne by or provided for in such Instruments, and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) All Events of Default with respect to Instruments
of that series, other than the nonpayment of the principal
of Instruments of that series which has become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 513 hereof.
If an Event of Default shall have occurred and be continuing with
respect to more than one series of Instruments, the Trustee or the Holders
of not less than a majority in aggregate principal amount of the
outstanding Instruments of all such series, considered as one class, may
rescind and annul such declaration of acceleration, and not the Holders of
the Instruments of any one of such series. No such rescission shall
affect any subsequent default or impair any right consequent thereon.
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Upon receipt by the Trustee of any written notice of declaration of
acceleration, or rescission and annulment thereof, with respect to
Instruments of a series all or part of which is represented by a Global
Instrument, from the Holders of less than the requisite principal amount
of Outstanding Instruments of such series, the Trustee shall establish a
record date for determining the Holders of Outstanding Instruments of such
series entitled to join in such written notice of declaration of
acceleration, or rescission and annulment, as the case may be, which
record date shall be at the close of business on the day the Trustee
receives such written notice of declaration of acceleration, or rescission
and annulment, as the case may be. The Holders on such record date, or
their duly designated proxies, and only such Persons, shall be entitled to
join in such written notice of declaration of acceleration, or rescission
and annulment, as the case may be, whether or not such Holders remain the
Holders after such record date; provided, however, that unless such
declaration of acceleration, or rescission and annulment, as the case may
be, shall have become effective by virtue of the requisite percentage
having been obtained prior to the day which is 90 days after such record
date, such written notice of declaration of acceleration, or rescission
and annulment, as the case may be, shall automatically and without further
action by any Holder be canceled and of no effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, of Instruments
of any series from giving, (1) after expiration of such 90-day period, a
new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written
notice of declaration of acceleration, or rescission and annulment
thereof, which has been canceled pursuant to the proviso to the preceding
sentence, or (2) during any such 90-day period, an additional written
notice of declaration of acceleration with respect to any other Event of
Default with respect to Instruments of such series, or an additional
written notice of rescission and annulment of any declaration of
acceleration with respect to any other Event of Default with respect to
Instruments of such series, in either of which events a new record date
shall be established pursuant to the provisions of this Section 502 in
respect of such new or additional written notice of declaration of
acceleration, or rescission and annulment, as the case may be.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Instrument of any series when such interest becomes
due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Instrument of any series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of Instruments of such series, the whole amount then due
and payable on Instruments of such series for principal of (and premium,
if any) and interest on, with interest upon the overdue principal (and
premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest, at the rate or
rates borne by or provided for in such Instruments; and, in addition
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thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including, without limitation, the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Instruments and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon the Instruments, wherever situated.
If an Event of Default with respect to Instruments of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of the
Instruments of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Instruments or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Instruments or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of any Instruments of any series shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Company for the payment of any overdue principal, premium or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of
principal of (or with respect to Original Issue Discount
Instruments, such portion of the principal amount as may be
specified in the terms of such Instruments), and premium, if
any, and interest owing and unpaid in respect of the
Instruments and to file such other papers or documents as
may be necessary or advisable in order to have the claims of
the Trustee (including, without limitation, any claim for
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
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reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 605 hereof.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Instruments or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Instruments.
All rights of action and claims under this Indenture or the
Instruments may be prosecuted and enforced by the Trustee without the
possession of any of the Instruments or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Instruments in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Instruments and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 605 hereof;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any, on) and
interest on the Instruments 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 Instruments for principal
(and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto, or as a court of competent jurisdiction
may direct.
SECTION 507. Limitation on Suits.
No Holder of any Instrument of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
Instruments of that series;
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(2) the Holders of not less than 33% in aggregate
principal amount of the Outstanding Instruments of that
series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in aggregate principal
amount of the Outstanding Instruments of that series; it
being understood and intended that no one or more Holders
shall have any right in any manner whatsoever by virtue of,
or by availing of, any provision of this Indenture or any
Instrument to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders of
Instruments.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Instrument shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Section 307 hereof) interest, if any, on such
Instrument on the respective Stated Maturities specified in such
Instrument (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment on such respective
date, and such right shall not be impaired or affected without the consent
of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Instruments in the last
paragraph of Section 306 hereof, no right or remedy herein conferred upon
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or reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Instrument to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority or more in aggregate principal amount of
the Outstanding Instruments of any series shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Instruments of such series, provided,
however, that if an Event of Default shall have occurred and be continuing
with respect to more than one series of Instruments, the Holders of a
majority or more in aggregate principal amount of the Outstanding
Instruments of all such series, considered as one class, shall have the
right to make such direction, and not the Holders of the Instruments of
any one of such series; provided, further, however, that
(1) such direction shall not be in conflict with any
rule of law, with this Indenture or with the Instruments of
any such series,
(2) the Trustee may take any other action it deems
proper which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the
rights of the other Holders of Instruments of such series
not joining in such action.
Upon receipt by the Trustee of any written notice directing the
time, method or place of conducting any such proceeding or exercising any
such trust or power with respect to Instruments of a series all or part of
which is represented by a Global Instrument and if such direction is from
Holders of less than a majority in aggregate principal amount of
Outstanding Instruments of such series, a record date shall be established
for determining Holders of Outstanding Instruments of such series entitled
to join in such notice, which record date shall be at the close of
business on the day the Trustee receives such notice. The Trustee shall
give notice to the Holders of record on such record date informing such
Holders of the Trustee's receipt of such written notice directing the
time, method or place of conducting any proceeding or exercising any trust
or power and informing such Holders of the record date for determining
Holders entitled to join in such written notice directing the time, method
or place of conducting any proceeding or exercising any trust or power.
32
The Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to join in such notice whether or not
such Holders remain Holders after such record date; provided, however,
that unless the Holders of a majority or more in aggregate principal
amount of the Outstanding Instruments of such series (or, with respect to
more than one series of Instruments, the Holders of a majority in
aggregate principal amount of the Outstanding Instruments of all such
series, considered as one claim) shall have joined in such notice prior to
the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of
no effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, (a) after expiration of such 90-day period, a
new notice identical to a notice which has been canceled pursuant to the
proviso to the preceding sentence, or (b) during any such 90-day period, a
new direction contrary to or otherwise different from such direction, in
either of which events a new record date shall be established pursuant to
the provisions of this Section 512 in respect of such new direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Instruments of any series may, on behalf of the
Holders of all the Instruments of such series, waive any past default and
its consequences, hereunder with respect to such series, except a default
(1) in the payment of the principal of (or premium, if
any) or interest, if any, on any Instrument of such series,
or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be amended or modified without the
consent of the Holder of each Outstanding Instrument of such
series affected.
If a past default shall have occurred with respect to more than one
series of Instruments, the Trustee or the Holders of not less than a
majority in aggregate principal amount of the Outstanding Instruments of
all such series, considered as one class, may waive such past default and
its consequence, except as set forth in subparagraph (1) and (2) of the
immediately preceding paragraph, and not the Holders of the Instruments of
any one of such series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any past
default hereunder. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any default hereunder, whether or not such Holders
remain Holders after such record date; provided, however, that unless such
majority in aggregate principal amount shall have waived such default
prior to the date which is 90 days after such record date, any such waiver
previously given by a Holder shall automatically and without further
action by any such Holder be canceled and of no effect.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Instrument 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, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit, other than the
Trustee, of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including, without
limitation, reasonable attorney's fees and expenses at trial and on
appeal, 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; provided, that the provisions of this Section shall not apply to
any suit instituted by the Trustee or any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the
Outstanding Instruments of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Instrument on or after the respective Stated
Maturities specified in such Instrument (or, in the case of redemption, on
or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect
the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay
or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Rights of Trustee.
Subject to the rights, duties and responsibilities of the Trustee
set forth in Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may, in the absence of bad faith on its part,
rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order unless otherwise specifically provided herein (in each case,
other than delivery of any Instrument to the Trustee for
authentication and delivery pursuant to Section 303 hereof, which
shall be sufficiently evidenced as provided therein) and any
34
resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall reasonably deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection 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, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall
be entitled to examine, during business hours and upon reasonable
notice, the books, records and premises of the Company, personally
or by agent or attorney;
(7) 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;
(8) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it; and
(9) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture.
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SECTION 602. Not Responsible for Recitals or Issuance of Instruments.
The recitals contained herein and in the Instruments, except in the
certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Instruments, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the
Instruments and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility on Form T-l supplied to the
Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Instruments
or the proceeds thereof.
SECTION 603. May Hold Instruments.
The Trustee, any Paying Agent, Authenticating Agent, Instrument
Registrar or any other agent of the Trustee or the Company, in its
individual or any other capacity, may become the owner or pledgee of
Instruments and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Authenticating Agent,
Instrument Registrar or such other agent.
SECTION 604. Money Held in Trust.
Except as provided in Section 1003 hereof, money held by the
Trustee or any Paying Agent in trust hereunder need not be segregated from
other funds except to the extent required by law. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 605. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel and any
Authenticating Agent), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any
predecessor Trustee and their respective agents for, and to
hold them harmless against, any and all loss, damages,
36
claims, liability or expense, including, without limitation,
taxes (other than taxes on the income of the Trustee)
incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including,
without limitation, the costs and expenses of defending
themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties
hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Instruments
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium,
if any, on) or interest on the Instruments.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(4) hereof or Section
501(5) hereof, the expenses (including, without limitation, the reasonable
charges and expenses of its counsel) and the compensation for the services
are intended to constitute expenses of the administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 606. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation permitted by the Trust Indenture Act to act as trustee under
an indenture qualified under the Trust Indenture Act and that has a
combined capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of at least $100,000,000. If at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 607. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee under Section 608
hereof.
The Trustee may resign at any time with respect to the Instruments
of one or more series by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
the Instruments of such series.
The Trustee may be removed at any time with respect to the
Instruments of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Instruments of such series, delivered
to the Trustee and to the Company.
If at any time:
37
(1) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the
Trust Indenture Act with respect to any series of
Instruments after written request therefor by the Company or
by any Holder who has been a bona fide Holder of an
Instrument of such series for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 606 hereof with respect to any series of Instruments
and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with
respect to any series of Instruments 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, (a) the Company by or pursuant to a Board
Resolution may remove the Trustee with respect to all Instruments or the
Instruments of such series, or (b) subject to Section 315(e) of the Trust
Indenture Act, any Holder who has been a bona fide Holder of an Instrument
of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee
with respect to such series.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Instruments of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Instruments of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Instruments of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Instruments of any particular series) and shall comply with the
applicable requirements of Section 608 hereof. If, within one year after
such resignation, removal or incapability or the occurrence of such
vacancy, a successor Trustee with respect to the Instruments of any series
shall be appointed by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Instruments of such series delivered
to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 608 hereof, become
the successor Trustee with respect to the Instruments of such series and
to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Instruments of any series
shall have been so appointed by the Company or the Holders of Instruments
of such series and accepted appointment in the manner required by Section
608 hereof, any Holder who has been a bona fide Holder of an Instrument of
such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Instruments
of such series.
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The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Instruments of any series and each
appointment of a successor Trustee with respect to the Instruments of any
series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Instruments of such series as their
names and addresses appear in the Instrument Register at the time of such
event. Each notice shall include the name of the successor Trustee with
respect to the Instruments of such series and the address of its Corporate
Trust Office.
SECTION 608. Acceptance of Appointment by Successor.
In the case of the appointment hereunder of a successor Trustee
with respect to all Instruments, 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 nevertheless to its claim, if
any, provided for in Section 605 hereof.
In the case of the appointment hereunder of a successor Trustee
with respect to the Instruments of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Instruments 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 Instruments of that or those series
to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Instruments, 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 Instruments of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein, such retiring Trustee shall, with respect to
the Instruments 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 other than as hereinafter set
forth, and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
39
duties of the retiring Trustee with respect to the Instruments of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with
respect to the Instruments of that or those series to which the
appointment of such successor Trustee relates.
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 the two preceding paragraphs of this Section, as the
case may be.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 609. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In
case any Instruments shall have been authenticated, but not delivered, by
the Trustee then in office with respect to such series of Instruments, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Instruments so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Instruments.
SECTION 610. Appointment and Qualification of Authenticating Agent.
At any time when any of the Instruments remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Instruments which shall be authorized to act on behalf
of the Trustee to authenticate Instruments of that or those series issued
upon original issue, exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306 hereof, and Instruments so
authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Instruments by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent.
Each such Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation that would be permitted by the
Trust Indenture Act to act as trustee under an indenture qualified under
the Trust Indenture Act, is authorized under applicable law and its
charter to act as an Authenticating Agent and has a combined capital and
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surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $50,000,000. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of any Authenticating
Agent, shall continue to be the Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent. In case any Instruments shall have
been authenticated, but not delivered, by the Authenticating Agent then in
place with respect to such series of Instruments, any successor by merger,
conversion or consolidation to such Authenticating Agent may adopt such
authentication and deliver the Instruments so authenticated with the same
effect as if such successor Authenticating Agent had itself authenticated
such Instruments.
Any Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee at
any time may, or in case at any time any Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the
Trustee promptly shall terminate the agency of any such Authenticating
Agent by giving written notice of termination to such Authenticating Agent
and to the Company. Upon such a resignation or termination, the Trustee
may appoint a successor Authenticating Agent which must be acceptable to
the Company and which must meet the eligibility requirements of this
Section. The Trustee shall mail notice of such appointment to all Holders
of Instruments of the series with respect to which such Authenticating
Agent will serve as the names and addresses of such Holders appear in the
Instrument Register at the time of such event. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.
The provisions of Sections 104, 308, 601 and 602 hereof shall also
be applicable to any Authenticating Agent.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, to
reimburse it for all reasonable expenses, disbursements and advances
incurred or made by it (each as may be agreed to in writing by the
Company) and to indemnify it for and hold it harmless against any loss,
liability or expense incurred hereunder to the same extent as the Company
is required to pay the Trustee under Section 605 hereof, and the Trustee
shall have no obligation with respect to such expenses, disbursements,
advances or indemnities.
If an appointment with respect to one or more series of Instruments
is made pursuant to this Section, the Instruments of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in the
following form:
41
This is one of the Instruments of the series designated herein
referred to in the within-mentioned Indenture.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION,
as Trustee
By
as Authenticating Agent
By
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee with respect
to the Instruments of each series (1) semiannually, either (a) not later
than June 30 and December 31 in each year in the case of Original Issue
Discount Instruments which by their terms bear interest only after
maturity, or (b) not later than 15 days after each Regular Record Date in
the case of Instruments of any other series, if and so long as Instruments
of such series are Outstanding, and (2) at such other times as the Trustee
may request in writing, within 30 days after receipt by the Company of any
such request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the
Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders of such series; provided, however, that
no such list need be furnished if the Trustee shall be the Instrument
Registrar. Any such list shall be dated as of a date not more than 15
days prior to the time such information is furnished or caused to be
furnished and need not include information received after such date;
provided, further, however, that with respect to any list furnished
pursuant to subclause
(1) (b) above, any such list shall be dated as of the Regular Record Date.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Instruments, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company, the
Trustee, any Paying Agent or any Instrument Registrar shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under Section 312(b) of
the Trust Indenture Act.
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SECTION 703. Reports by Trustee.
Within 60 days after May 15 of each year, if required by Section
313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 with respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately preceding May
15 and the date of this Indenture.
The Trustee shall transmit the reports required by Section
313(b)(2) of the Trust Indenture Act at the times specified therein.
Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
SECTION 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of
the annual reports and of the information, documents and
other reports (or copies of such portions of any of the
foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Company may be required to
file with the SEC 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 it shall file with the Trustee and the SEC,
in accordance with rules and regulations prescribed from
time to time by the SEC, 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;
(2) file with the Trustee and the SEC, in accordance
with rules and regulations prescribed from time to time by
the SEC, such additional information, documents and reports
with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
and
(3) transmit to the Holders within 30 days after the
filing thereof with the Trustee, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture
Act, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section 704 as may be
required by rules and regulations prescribed from time to
time by the SEC.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer, Sale or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company, without the consent of the Holders of the Outstanding
Instruments, may dissolve or convey, transfer, sell, lease or otherwise
dispose of all or substantially all of its properties and assets to any
Person, and may consolidate with or merge into another Person or permit
one or more other Persons to consolidate or merge into it, if the
surviving, resulting or transferee corporation:
(1) is the Company or
(2) if other than the Company,
(a) is organized and existing under the laws of the
United States of America, any state thereof or the District of
Columbia;
(b) such corporation shall expressly assume, by an
indenture (or indentures, if at such time there is more than
one Trustee) supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any, on)
and interest, if any, on all the Instruments and the
performance of every other covenant of this Indenture on the
part of the Company to be performed or observed; and
(c) immediately after giving effect to such
transaction, no Event of Default and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
and either the Company or the successor corporation or Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer, sale, lease or other disposition and such supplemental
indenture, if applicable, comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger or conveyance, sale, transfer,
lease or other disposition of all or substantially all of the properties
and assets of the Company in accordance with Section 801 hereof, the
successor corporation or Person formed by such consolidation or into which
the Company is merged or to which such conveyance, sale, transfer, lease
or other disposition is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation or Person had been
named as the Company herein; and thereafter, except in the case of a
lease, the predecessor corporation shall be released from all obligations
and covenants under this Indenture and the Instruments.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company (when authorized by
or pursuant to a Board Resolution) and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation
to the Company and the assumption by any such successor of
the obligations of the Company hereunder and under the
Instruments; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Instruments
(and if such covenants are to be for the benefit of less
than all series of Instruments, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default with
respect to all or any series of Instruments (as shall be
specified in such supplemental indenture); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Instruments in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons; or
(5) to change or eliminate any of the provisions of
this Indenture; provided, however, that any such change or
elimination shall become effective only when there is no
Instrument Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled
to the benefit of such provision; or
(6) to secure the Instruments; or
(7) to establish the form or terms of Instruments of
any series as permitted by Sections 201 and 301 hereof; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Instruments of one or more series and to add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 608 hereof; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture, provided such action shall not
45
adversely affect the interests of the Holders of Instruments
of any series in any material respect; or
(10) to effect or reflect any amendment or amendments
to the Trust Indenture Act after the date of this Indenture,
which amendment or amendments require changes to this
Indenture, require the incorporation herein of additional
provisions or permit changes to, or require the elimination
of, provisions which, at the date of this Indenture or at
anytime thereafter, were required by the Trust Indenture Act
to be contained herein.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Instruments of all series
affected by such supplemental indenture (all such series considered as one
class), by Act of said Holders delivered to the Company and the Trustee,
the Company (when authorized by or pursuant to a Board Resolution) and the
Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Instruments of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Instrument affected
thereby,
(1) change the Stated Maturity of the principal of, or
premium, if any, on or installment of interest on, any
Instrument, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable thereon, or
change the method of calculating the rate of interest on any
Instrument, or reduce the amount of the principal of an
Original Issue Discount Instrument that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 hereof, or change the Place
of Payment where, or the coin or currency in which, any
Instrument or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Instruments of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section or
Sections 513 or 1008 hereof, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding instrument
affected thereby.
46
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Instruments, or
which modifies the rights of the Holders of Instruments 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 Instruments of
any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or
not such Holders remain Holders after such record date; provided, however,
that unless such consent shall have become effective by virtue of the
requisite percentage having been obtained prior to the date which is 90
days after such record date, any such consent previously given by a Holder
shall automatically and without further action by any such Holder be
canceled and of no effect.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 315 of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of an Instrument theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Reference in Instruments to Supplemental Indentures.
Instruments of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Instruments of any series so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and made available for delivery by the Trustee in exchange
for Outstanding Instruments of such series without charge to the Holders.
SECTION 906. Conformity with Trust Indenture Act.
47
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Instruments of each series in
accordance with the terms of the Instruments of such series and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place of
Payment for any series of Instruments where Instruments of that series may
be presented or surrendered for payment, where Instruments of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Instruments
of that series and this Indenture may be served. Unless otherwise
designated by the Company in written notice to the Trustee, such office or
agency shall be the Corporate Trust Office of the Trustee. If at any time
the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee and, effective at that time, the
Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands under this Indenture.
In addition to such office or agency, the Company may also from
time to time designate one or more other offices or agencies in one or
more other cities where the Instruments of one or more series may be
presented or surrendered for any or all the purposes specified above in
this Section and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 1003. Money for Instrument Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Instruments, it shall, on or before each due date
of the principal of (and premium, if any, on) or interest on any of the
Instruments of that series, 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 until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Instruments, it shall, on or prior to each due date of the
principal of (and premium, if any) or interest on any Instruments of that
series, deposit with any Paying Agent for that series a sum sufficient to
pay such principal (and premium, if any,) or interest so becoming due,
48
such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of
Instruments, other than the Trustee, to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on
Instruments of that series in trust for the ratable benefit
of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Instruments of that
series) in the making of any payment of principal of (and
premium, if any, on) or interest on the Instruments of that
series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Instrument of any series and remaining
unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Instrument shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before making
any such repayment, may at the expense of the Company, mail to the Holders
at their addresses as set forth in the Instrument Register at such time,
or cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation at each Place of Payment with respect to Instruments of such
series, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days or more than 60
days from the date of such publication or mailing, any unclaimed balance
of such money then remaining shall be repaid to the Company.
SECTION 1004. Corporate Existence.
49
Subject to Article Eight hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect
its corporate existence, rights (charter and statutory) and material
franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders of the Instruments.
SECTION 1005. Maintenance of Properties.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties
used or useful in the conduct of its business to be maintained and kept in
good condition, repair and working order (ordinary wear and tear excepted)
and shall cause (or, with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in
the judgment of the Company, may be necessary so that the business carried
on in connection therewith may be properly conducted; provided, however,
that nothing in this Section shall prevent the Company from discontinuing,
or causing the discontinuance of, the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of the Board of
Directors, desirable in the conduct of its business and is not
disadvantageous in any material respect to the Holders of the Instruments.
SECTION 1006. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement (which need not be contained
in or accompanied by an Officers' Certificate) signed by the Chief
Executive Officer, Chief Financial Officer or Chief Accounting Officer of
the Company, stating, as to such signer thereof, that
(1) a review of the activities of the Company during
such year and of its performance under this Indenture has
been made under his or her supervision; and
(2) to the best of his or her knowledge, based on such
review, (A) the Company is in compliance with all of its conditions
and covenants under this Indenture or, if there has been a default
in the fulfillment of any such obligation, specifying each such
default known to him or her and the nature and status thereof, and
(B) no event has occurred and is continuing which is, or after
notice or lapse of time or both would become, an Event of Default
or, if such an event has occurred and is continuing, specifying
each such event known to him or her and the nature and status
thereof.
The Company shall deliver to the Trustee, within 10 days after the
occurrence thereof, written notice of any event of which the Company's
Chief Executive Officer, Chief Financial Officer, or Chief Accounting
Officer has actual knowledge, which event is, or after notice or lapse of
time or both would become, an Event of Default.
SECTION 1007. Negative Pledge.
50
The Company shall not create, assume, incur, or suffer to be
created, assumed, or incurred or to exist any mortgage, lien, pledge,
charge or encumbrance of any kind (other than Excepted Encumbrances) upon
any property of any character of the Company (other than Excepted
Property), whether owned at the date hereof or hereafter acquired, to
secure indebtedness for borrowed money without either making effective
provision whereby the Instruments of all series shall be directly secured
equally and ratably with the indebtedness secured by such mortgage, lien,
pledge, charge or encumbrance, or depositing with the Trustee, as
collateral for the Instruments, bonds or other evidences of indebtedness
of the Company secured by such lien; provided, however, that this
restriction shall not be applicable to nor prevent:
(1) the pledging by the Company of any property or
assets as security for the payment of any tax, assessment or
other similar charge demanded of the Company by any
governmental authority or public body so long as the Company
in good faith contests its liability to pay the same, or as
security to be deposited with any governmental authority or
public body for any purpose at any time required by law or
governmental regulation as a condition to the transaction of
any business or the exercise of any franchise, grant,
privilege, license or right;
(2) the pledging by the Company of any property or
assets for the purposes of securing a stay or discharge or
for any other purpose in the course of any legal proceeding
in which the Company is a party; provided, however, that the
fair market value, in the good faith opinion of the Board of
Directors, of such property or assets at the time of such
pledge, together with (a) the fair market value, in the good
faith opinion of the Board of Directors, of any other
property or assets so pledged (at the time such other
property or assets was pledged) plus (b) the fair market
value, in the good faith opinion of the Board of Directors,
of any property or assets pledged pursuant to paragraph (4)
below (at the time such property or assets was pledged),
does not exceed $25,000,000 in the aggregate;
(3) any mortgage, lien, pledge, charge or encumbrance
on any property or asset in favor of the United States of
America, any State or any department, agency,
instrumentality or political subdivision of any such
jurisdiction, securing industrial revenue bonds, the
interest on which is exempt from Federal income tax under
Section 103 of the Internal Revenue Code or any successor
provision; provided, however, that such bonds shall be
issued for the purpose of financing the construction or
improvement of such property or asset; and provided,
further, that such mortgage, lien, pledge, charge or
encumbrance is a condition to the issuance of such bonds;
(4) mortgages, liens, pledges, charges or encumbrances
arising in the ordinary course of its business which (a) do
not secure indebtedness for borrowed money and (b) do not in
the aggregate materially detract from the value of its
properties or assets or materially impair the use thereof in
the operation of its business; provided, however, that the
51
fair market value, in the good faith opinion of the Board of
Directors, of any property or assets so pledged (at the time
of such pledge), together with (i) the fair market value, in
the good faith opinion of the Board of Directors, of any
other property or assets so pledged (at the time such other
property or assets was pledged) plus (ii) the fair market
value, in the good faith opinion of the Board of Directors,
of any property or assets pledged pursuant to paragraph (2)
above (at the time such property or assets was pledged),
does not exceed $25,000,000 in the aggregate;
(5) making good faith deposits in connection with
tenders, contracts or leases to which the Company is a
party; or
(6) the pledging by the Company of any property or
assets in connection with the incurrence of indebtedness
(under circumstances not otherwise excepted from the
operation of this Section) in aggregate principal amount not
exceeding 3% of the Company's net tangible utility assets at
any time outstanding.
Any instrument creating a lien in favor of the Holders pursuant to
the requirements of this Section shall contain reasonable and customary
provisions for the enforcement of such lien and for the release of, or
substitution for, the property subjected to such lien. Such lien shall be
evidenced by an appropriate instrument or instruments executed and
delivered to the Trustee (or to the extent legally necessary, to another
trustee as additional or separate trustee). The Trustee, subject to the
provisions of Section 102 hereof, may receive an Opinion of Counsel as
conclusive evidence that any such instrument is in customary form and
complies with the foregoing provisions of this paragraph; and the Trustee
shall not be under any duty or responsibility to any Holder with respect
to the form, validity or enforceability of any such instrument which it
may accept in reliance in good faith upon any such opinion.
The term "Excepted Encumbrances" as used herein shall mean as of
any particular time any of the following:
(1) mortgages, liens, pledges, charges or encumbrances
in existence on the date hereof;
(2) liens for taxes, assessments of governmental
charges not delinquent and liens for worker's compensation
awards and similar obligations not delinquent and liens for
taxes, assessments or governmental charges delinquent but
the validity of which is being contested at the time by the
Company in good faith by appropriate proceedings;
(3) any liens securing indebtedness neither assumed
nor guaranteed by the Company nor on which it customarily
pays interest, existing in or relating to real estate or
rights in real estate acquired by the Company distribution
system or right-of-way purposes or in connection with its
usual operations;
(4) easements, rights of way, restrictions, exceptions
or reservations in or affecting any property or asset of the
52
Company created for the purpose of roads, railroads,
railroadside tracks, electric lines, pipe liens, sewers,
water and gas transmission and distribution mains, conduits,
transmission, distribution, or communication lines or for
the joint or common use of real property and equipment and
other like purposes, building and use restrictions and
defects and irregularities of title to, or leases of, any
property or asset of the Company which do not materially
impair the use of such property or asset as an entirety in
the operation of the business of the Company;
(5) undetermined liens and charges incidental to
current construction, including, without limitation,
mechanic's, laborers', materialmen's and similar liens;
(6) any obligations or duties affecting the properties
or assets of the Company to any municipality or public
authority with respect to any franchise, grant, license,
permit or certificate;
(7) rights reserved to or vested in any municipality
or public authority to control or regulate any property or
asset of the Company or to use such property in a manner
which does not materially impair the use of such property or
asset for the purposes for which it is held by the Company;
(8) any irregularities in or deficiencies of title to
any rights of way for distribution mains or pipes and/or
appurtenances to any thereto or other improvements thereon
and to any real estate used or to be used primarily for
right of way purposes, which do not materially affect the
use of such property or asset by the Company in the normal
course of its business;
(9) purchase money mortgages, liens, pledges or
security interests (which term for purposes of this
subsection (9) shall include conditional sale agreements or
other title retention agreements) upon or in property or
assets acquired after the date of this Indenture (provided
that the same is created concurrently with the acquisition
of such property or assets by the Company), provided that no
such mortgage, lien, pledge or security interest extends or
shall extend to or cover any property or assets of the
Company other than the property or assets then being
acquired and fixed improvements then or thereafter erected
thereon;
(10) leases made, or existing on property or assets
acquired, in the ordinary course of business;
(11) any mortgage, lien, pledge, charge or encumbrance
of any corporation existing at the time such corporation is
merged or consolidated with or into the Company and not
created in contemplation of such event;
(12) any mortgage, lien, pledge, charge or encumbrance
existing on any property or asset at the time of the
acquisition thereof by the Company and not created in
53
contemplation of such acquisition, and any mortgage, lien,
pledge, charge or encumbrance on any property or asset
acquired or constructed by the Company and created not later
than the date of (a) such acquisition or completion of such
construction or (b) commencement of full operation of such
property or asset, whichever is later;
(13) the liens of any judgment in an aggregate amount not in
excess of $250,000; and
(14) zoning laws and ordinances.
The term "Excepted Property" as used herein shall mean (1) cash,
bonds, stocks, obligations, and other securities (including, without
limitation, securities issued by Subsidiaries of the Company); (2) choses
in action, accounts receivable, unbilled revenues, judgments and other
evidences of indebtedness and contracts, leases and operating agreements;
(3) stock in trade, merchandise, equipment, apparatus, materials or
supplies and other personal property manufactured or acquired for the
purpose of sale and/or resale in the usual course of business or
consumable in the operation of any of the properties or businesses of the
Company or held for the purpose of repair or replacement; (4) timber, gas,
fuel oil, electric energy, minerals (including, without limitation,
developed and undeveloped natural gas reserves and natural gas in
underground storage or otherwise), liquefied natural gas, propane gas,
synthetic fuel, mineral rights and royalties; (5) materials or products
generated, manufactured, stored, produced or purchased by the Company for
sale, distribution or use in the ordinary course of its business; and (6)
office furniture and equipment, tools, rolling stock, buses, motor
coaches, trucks and automobiles and other vehicles and aircraft.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 801, 1004, 1005 and 1007 with
respect to the Instruments of any series if before or after the time for
such compliance the Holders of not less than a majority in aggregate
principal amount of the Instruments of all such series at the time
Outstanding (all such series considered as one class) shall, by Act of
such Holders, either waive such compliance in each instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such covenant or condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any such
covenant or condition. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons,
shall be entitled to waive any such covenant or condition hereunder,
whether or not such Holders remain Holders after such record date;
provided that unless the Holders of a majority in aggregate principal
amount of the Outstanding Instruments of such series shall have waived
such covenant or condition prior to the date which is 90 days after such
record date, any such waiver by a Holder previously given shall
automatically and without further action by such Holder be canceled and of
no further effect.
54
ARTICLE ELEVEN
Redemption of Instruments
SECTION 1101. Applicability of Article.
Redemption of Instruments of any series at the election of the
Company as permitted or required by the terms of such Instruments shall be
made in accordance with the terms of such Instruments and (except as
otherwise specified as contemplated by Section 301 hereof for Instruments
of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Instruments shall be
evidenced by a Board Resolution or a Company Order pursuant to a Board
Resolution. In case of any redemption at the election of the Company of
less than all the Instruments of any series, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date and of the principal amount of Instruments of such
series to be redeemed. In the case of any redemption of Instruments
subject to any condition on such redemption provided in the terms of such
Instruments or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing satisfaction of such
condition.
SECTION 1103. Selection by Trustee of Instruments to Be Redeemed.
If less than all the Instruments of any series are to be redeemed,
the particular Instruments to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the Outstanding
Instruments of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal
amount of Instruments of such series; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of an
Instrument not redeemed to less than the minimum authorized denomination
for Instruments of that series. In any case where multiple Instruments of
such series are registered in the same name, the Trustee shall treat the
aggregate principal amount so registered as if it were represented by one
Instrument of such series. If the Instruments to be redeemed consist of
Instruments having different Stated Maturities or different rates of
interest or methods of computing interest, then the Company may, by
written notice to the Trustee, direct that the Instruments of such series
to be redeemed shall be selected from among groups of such Instruments
having specified Stated Maturities or rates of interest or methods of
computing interest and the Trustee shall thereafter select the particular
Instruments to be redeemed in the manner set forth above from among the
groups of such Instruments so specified.
The Trustee shall promptly notify the Company and the Instrument
Registrar (if other than itself) in writing of the Instruments selected
for redemption and, in the case of any Instrument selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Instruments shall
relate, in the case of any Instruments redeemed or to be redeemed only in
55
part, to the portion of the principal amount of such Instruments which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 hereof, not less than 30 or more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the Instruments
of a Series to be redeemed, to each Holder of Instruments to be redeemed
at such Holder's address appearing in the Instrument Register just prior
to the time the notice of redemption is to be sent.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Instruments of
any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of
the particular Instruments to be redeemed,
(4) that on the Redemption Date, the Redemption Price
will become due and payable upon each such Instrument or
portion thereof to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Instruments are to
be surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such
is the case, and
(7) the CUSIP number, if any.
Notice of redemption of Instruments to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit in
trust with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003 hereof) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest, if any, on, all the Instruments to be redeemed on
that Redemption Date.
SECTION 1106. Instruments Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Instruments so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and after
such date (unless the Company shall default in the payment of the
56
Redemption Price and accrued interest, if any, thereon) such Instruments
shall cease to bear interest. Upon surrender of any such Instrument for
redemption in accordance with said notice, such Instrument shall be paid
by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Instruments, or one or more Predecessor
Instruments, registered as such at the close of business on the Regular
Record Dates therefor according to their terms and the provisions of
Section 307 hereof.
If any Instrument called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if
any, thereon) shall, until paid, bear interest from the Redemption Date at
the rate or rates prescribed therefor in such Instrument.
SECTION 1107. Instruments Redeemed in Part.
Any Instrument which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that
purpose pursuant to Section 1002 hereof (with, if the Company, the Trustee
or the Instrument Registrar so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Trustee
and the Instrument Registrar duly executed by the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery to the Holder of such Instrument, without
service charge, a new Instrument or Instruments of the same series, of
like tenor and of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Instrument so surrendered. If a Global
Instrument is so surrendered, the Company shall execute, and the Trustee
or the Authenticating Agent shall authenticate and make available for
delivery to the Depository for such Global Instrument as shall be
specified in the Company Order with respect thereto, without service
charge, a new Global Instrument in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global Instrument so
surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of any Instruments of a series required by the
terms of such Instrument (except as otherwise specified as contemplated by
Section 301 hereof for Instruments of such series).
The minimum amount of any sinking fund payment provided for by the
terms of the Instruments 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 Instruments of any series is
herein referred to as an "optional sinking fund payment." If provided for
by the terms of Instruments of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202
hereof. Each sinking fund payment shall be applied to the redemption of
57
Instruments of any series as provided for by the terms of Instruments of
such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Instruments.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Instruments of any series to be made
pursuant to the terms of such Instruments, (1) deliver Outstanding
Instruments of such series (other than any previously called for
redemption) and (2) apply as a credit Instruments of such series which
have been redeemed (or called for redemption and for which the Redemption
Price, together with accrued interest, if any, has been deposited pursuant
to Section 1105 hereof) either at the election of the Company pursuant to
the terms of such Instruments or through the application of permitted
optional sinking fund payments pursuant to the terms of such Instruments;
provided that such Instruments have not been previously so credited. Such
Instruments shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Instruments for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Instruments for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Instruments, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for Instruments of that series pursuant to the terms of the
Instruments of that series, the portion thereof, if any, which is to be
satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by delivering Instruments of such series (other than any
previously called for redemption), the portion thereof, if any, which is
to be satisfied by crediting Instruments of such series which have been
redeemed (or called for redemption and for which the Redemption Price,
together with accrued interest, if any, has been deposited pursuant to
Section 1105 hereof) and which have not been previously so credited, as
permitted by Section 1202 hereof, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Instruments to be credited and not
theretofore so delivered. If such Officers' Certificate shall specify an
optional amount be added to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 45 days before each such sinking fund
payment date the Trustee shall select the Instruments to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103
hereof 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
1104 hereof. The Company shall deposit the amount of cash, if any,
required for such sinking fund payment in the manner provided in Section
1105 hereof. Such notice having been duly given, the redemption of such
Instruments shall be made upon the terms
and in the manner stated in Sections 1106 and 1107 hereof.
58
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.
NUI CORPORATION
BY:______________________
Name:
Title:
(SEAL)
Attest:___________________
Name:
Title:
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION,
as Trustee
BY:______________________
Name:
Title:
(SEAL)
Attest:_______________________
Name:
Title:
59
STATE OF [NEW JERSEY] )
) SS.:
COUNTY OF [SOMERSET] )
I hereby certify, that on this day before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgements, personally appeared
and , respectively, of NUI
Corporation, a corporation organized and existing under the laws of the
State of New Jersey, to me personally known, or has produced
______________________________ as identification, and known to me to be
the and , respectively, of said corporation,
who executed the foregoing instrument, and acknowledged before me that the
same was executed in the name and on behalf of said corporation.
WITNESS my hand and official seal in the County and State last
aforesaid, this day of , 1994.
Notary Public
Name:
(Notarial Seal)
My Commission Expires:
Commission Serial Number:
60
STATE OF [NEW JERSEY] )
) SS.:
COUNTY OF [ESSEX] )
I hereby certify, that on this day before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgements, personally appeared
and , respectively, of First
Fidelity Bank, National Association, a national bank organized, existing
and authorized to accept and execute trusts of the character herein set
out under and by virtue of the laws of the United States, to me personally
known, or has produced ______________________________ as identification,
and known to me to be the and , respectively,
of said corporation, who executed the foregoing instrument, and
acknowledged before me that the same was executed in the name and on
behalf of said corporation.
WITNESS my hand and official seal in the County and State last
aforesaid, this day of , 1994.
Notary Public
Name:
(Notarial Seal)
My Commission Expires:
Commission Serial Number:
61