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PUBLIC SERVICE COMPANY OF NEW MEXICO
to
THE CHASE MANHATTAN BANK
Trustee
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INDENTURE
Dated as of March 11, 1998
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(For Senior Notes)
63035864.02
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 Definitions.............................................1
"Act," ......................................................2
"Affiliate" ......................................................2
"Authenticating Agent...................................................2
"Board of Directors.....................................................2
"Board Resolution ......................................................2
"Business Day," ......................................................2
"Capitalization" ......................................................2
"Commission" ......................................................2
"Company" ......................................................3
"Company Request ......................................................3
"Corporate Trust Office.................................................3
"Corporation" ......................................................3
"Covenant Defeasance....................................................3
"Debt" ......................................................3
"Defaulted Interest.....................................................3
"Defeasance" ......................................................3
"Depositary" ......................................................3
"Event of Default ......................................................3
"Exchange Act" ......................................................3
"Expiration Date ......................................................3
"Global Note" ......................................................3
"Holder" ......................................................3
"Indenture" ......................................................3
"independent," ......................................................4
"interest," ......................................................4
"Interest Payment Date..................................................4
"Investment Company Act.................................................4
"Maturity," ......................................................4
"Net Tangible Assets....................................................4
"Notes" ......................................................4
"Note Register" ......................................................4
"Notice of Default......................................................4
"Officers' Certificate..................................................4
"Operating Property.....................................................5
"Opinion of Counsel.....................................................5
"Original Issue Discount Note...........................................5
"Outstanding," ......................................................5
"Paying Agent" ......................................................6
"Person" ......................................................6
"Place of Payment ......................................................6
"Predecessor Note ......................................................6
"Redemption Date ......................................................6
"Redemption Price ......................................................6
"Regular Record Date....................................................6
"Responsible Officer....................................................6
"Sale and Lease-Back Transaction........................................6
"Securities Act" ......................................................7
"Special Record Date....................................................7
"Stated Maturity ......................................................7
"Subsidiary" ......................................................7
"Trust Indenture Act....................................................7
"Trustee" ......................................................7
"U.S. Government Obligation.............................................7
"Value" ......................................................7
"Vice President ......................................................7
Section 1.02 Compliance Certificates and Opinions....................8
Section 1.03 Form of Documents Delivered to Trustee..................8
Section 1.04 Acts of Holders; Record Dates...........................9
Section 1.05 Notices, Etc., to Trustee and Company..................11
Section 1.06 Notice to Holders; Waiver..............................12
Section 1.07 Conflict with Trust Indenture Act......................12
Section 1.08 Effect of Headings and Table of Contents...............13
Section 1.09 Successors and Assigns.................................13
Section 1.10 Separability Clause....................................13
Section 1.11 Benefits of Indenture..................................13
Section 1.12 Governing Law..........................................13
Section 1.13 Legal Holidays.........................................13
ARTICLE II
NOTE FORMS
Section 2.01 Forms Generally........................................14
Section 2.02 Form of Face of Note...................................14
Section 2.03 Form of Reverse of Note................................16
Section 2.04 Form of Legend for Global Notes........................20
Section 2.05 Form of Trustee's Certificate of Authentication........20
ARTICLE III
THE NOTES
Section 3.01 Amount Unlimited; Issuable in Series...................21
Section 3.02 Denominations..........................................23
Section 3.03 Execution, Authentication, Delivery and Dating.........24
Section 3.04 Temporary Notes........................................25
Section 3.05 Registration, Registration of Transfer and Exchange....26
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes............27
Section 3.07 Payment of Interest; Interest Rights Preserved.........28
Section 3.08 Persons Deemed Owners..................................29
Section 3.09 Cancellation...........................................29
Section 3.10 Computation of Interest................................30
Section 3.11 CUSIP Numbers..........................................30
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture................30
Section 4.02 Application of Trust Money.............................31
ARTICLE V
REMEDIES
Section 5.01 Events of Default......................................32
Section 5.02 Acceleration of Maturity; Rescission and Annulment.....33
Section 5.03 Collection of Indebtedness and Suits for
Enforcement by Trustee.................................34
Section 5.04 Trustee May File Proofs of Claim.......................34
Section 5.05 Trustee May Enforce Claims Without Possession of
Notes..................................................35
Section 5.06 Application of Money Collected.........................35
Section 5.07 Limitation on Suits....................................36
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest...................................36
Section 5.09 Restoration of Rights and Remedies.....................37
Section 5.10 Rights and Remedies Cumulative.........................37
Section 5.11 Delay or Omission Not Waiver...........................37
Section 5.12 Control by Holders.....................................37
Section 5.13 Waiver of Past Defaults................................38
Section 5.14 Undertaking for Costs..................................38
Section 5.15 Waiver of Stay or Extension Laws.......................39
ARTICLE VI
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities....................39
Section 6.02 Notice of Defaults.....................................40
Section 6.03 Certain Rights of Trustee..............................40
Section 6.04 Not Responsible for Recitals or Issuance of Notes......41
Section 6.05 May Hold Notes.........................................42
Section 6.06 Money Held in Trust....................................42
Section 6.07 Compensation and Reimbursement.........................42
Section 6.08 Conflicting Interests..................................43
Section 6.09 Corporate Trustee Required; Eligibility................43
Section 6.10 Resignation and Removal; Appointment of Successor......43
Section 6.11 Acceptance of Appointment by Successor.................45
Section 6.12 Merger, Conversion, Consolidation or Succession
to Business............................................46
Section 6.13 Preferential Collection of Claims Against Company......46
Section 6.14 Appointment of Authenticating Agent....................47
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses
of Holders............................................49
Section 7.02 Preservation of Information; Communications
to Holders............................................49
Section 7.03 Reports by Trustee....................................49
Section 7.04 Reports by Company....................................50
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain
Terms.................................................50
Section 8.02 Successor Substituted.................................51
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders....51
Section 9.02 Supplemental Indentures With Consent of Holders.......53
Section 9.03 Execution of Supplemental Indentures..................54
Section 9.04 Effect of Supplemental Indentures.....................54
Section 9.05 Conformity with Trust Indenture Act...................54
Section 9.06 Reference in Notes to Supplemental Indentures.........54
ARTICLE X
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest............55
Section 10.02 Maintenance of Office or Agency.......................55
Section 10.03 Money for Notes Payments to Be Held in Trust..........55
Section 10.04 Statement by Officers as to Default...................56
Section 10.05 Restrictions on Liens.................................56
Section 10.06 Corporate Existence...................................58
Section 10.07 Maintenance of Properties.............................58
Section 10.08 Waiver of Certain Covenants...........................59
Section 10.09 Calculation of Original Issue Discount................59
Section 10.10 Restrictions on Sale and Lease-Back Transactions......59
ARTICLE XI
REDEMPTION OF NOTES
Section 11.01 Applicability of Article..............................60
Section 11.02 Election to Redeem; Notice to Trustee.................60
Section 11.03 Selection by Trustee of Notes to be Redeemed..........60
Section 11.04 Notice of Redemption..................................61
Section 11.05 Deposit of Redemption Price...........................62
Section 11.06 Notes Payable on Redemption Date......................62
Section 11.07 Notes Redeemed in Part................................62
ARTICLE XII
SINKING FUNDS
Section 12.01 Applicability of Article..............................63
Section 12.02 Satisfaction of Sinking Fund Payments with Notes......63
Section 12.03 Redemption of Notes for Sinking Fund..................63
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01 Company's Option to Effect Defeasance or Covenant
Defeasance............................................64
Section 13.02 Defeasance and Discharge..............................64
Section 13.03 Covenant Defeasance...................................64
Section 13.04 Conditions to Defeasance or Covenant Defeasance.......65
Section 13.05 Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions.........67
Section 13.06 Reinstatement.........................................67
ARTICLE XIV
Meetings of Holders; Action Without Meeting
Section 14.01 Purposes for Which Meetings May Be Called.............67
Section 14.02 Call, Notice and Place of Meetings....................68
Section 14.03 Persons Entitled to Vote at Meetings..................68
Section 14.04 Quorum: Action........................................68
Section 14.05 Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings...........69
Section 14.06 Counting Votes and Recording Action of Meetings.......70
Section 14.07 Action Without Meeting................................71
ARTICLE XV
Immunity of INCORPORATORS, Stockholders, Officers and Directors
Section 15.01 Liability Solely Corporate............................71
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
INDENTURE dated as of March 11, 1998 between PUBLIC SERVICE
COMPANY OF NEW MEXICO, a corporation duly organized and existing under the laws
of the State of New Mexico (herein called the "Company"), having its principal
office at Alvarado Square, Albuquerque, New Mexico 87158, and THE CHASE
MANHATTAN BANK, a New York banking corporation, as Trustee (herein called the
"Trustee").
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 senior notes
(herein called the "Notes"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes or of series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States of America;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Notes
of one or more series.
"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 or Associate Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by
law, regulation or executive order to close, except as may be otherwise
specified for any series of the Notes, as contemplated by Section 3.01.
"Capitalization" means the total of all the following items appearing
on, or included in, the consolidated balance sheet of the Company: (i)
liabilities for indebtedness maturing more than twelve (12) months from the date
of determination; and (ii) common stock, preferred stock, premium on capital
stock, capital surplus, capital in excess of par value, and retained earnings
(however the foregoing may be designated), less, to the extent not otherwise
deducted, the cost of shares of capital stock of the Company held in its
treasury. Subject to the foregoing, Capitalization shall be determined in
accordance with generally accepted accounting principles and practices
applicable to the type of business in which the Company is engaged and that are
approved by independent accountants regularly retained by the Company, and may
be determined as of a date not more than (sixty) 60 days prior to the happening
of an event for which such determination is being made.
"Commissiion" means the Securities and Exchange Commission, from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
2
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "
Company" shall mean such successor Person.
"Company or "Company Order" means a written request or order signed in
the name of the Company by its Chairman of the Board, its Vice Chairman of the
Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the office of the Trustee in The City of
New York, at which at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is located at 450 West
33rd Street - 15th Floor, New York, New York 10001.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 13.03.
"Debt" means any outstanding debt for money borrowed evidenced by
notes, debentures, bonds, or other securities.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 13.02.
"Depositary" means, with respect to Notes of any series issuable in
whole or in part in the form of one or more Global Notes, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Notes as contemplated by Section 3.01.
"Event of Fault" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.04.
"Global Note" means a Note that evidences all or part of the Notes of
any series and bears the legend set forth in or contemplated by Section 2.04 (or
such legend as may be specified as contemplated by Section 3.01 for such Notes).
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Indenture" means this instrument as originally executed and 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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Notes established as contemplated by Section 3.01.
3
"independent," when applied to any accountant shall mean such a Person
who is in fact independent, selected by the Company and approved by the Trustee
in the exercise of reasonable care.
"interest" when used with respect to an Original Issue Discount Note
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Maturity," when used with respect to any Note, means the date on which
the principal of such Note 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.
"Net Tangible Assets" means the amount shown as total assets on the
consolidated balance sheet of the Company, less the following: (i) intangible
assets including, but without limitation, such items as goodwill, trademarks,
trade names, patents, and unamortized debt discount and expense and other
regulatory assets carried as an asset on the Company's consolidated balance
sheet; and (ii) appropriate adjustments, if any, on account of minority
interests. Net Tangible Assets shall be determined in accordance with generally
accepted accounting principles and practices applicable to the type of business
in which the Company is engaged and that are approved by the independent
accountants regularly retained by the Company, and may be determined as of a
date not more than sixty (60) days prior to the happening of the event for which
such determination is being made.
"Notes" has the meaning stated in the first recital of this Indenture
and more particularly means any Notes authenticated and delivered under this
Indenture.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 3.05.
"Notice of Default" means a written notice of the kind specified in
Section 5.01(4).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee; provided,
that an Assistant Treasurer or Assistant Secretary need not be an officer of the
Company under the Company's Bylaws. One of the officers signing an Officers'
Certificate given pursuant to Section 10.04 shall be the principal executive,
financial or accounting officer of the Company.
4
"Operating Property" means (i) any interest in real property owned by
the Company and (ii) any asset owned by the Company that is depreciable in
accordance with generally accepted accounting principles.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, or other counsel who shall be acceptable to the
Trustee.
"Original Issue Discount Note" means any Note which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding," when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(1) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Notes; provided that, if such
Notes 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;
(3) Notes as to which Defeasance has been effected pursuant to
Section 13.02; and
(4) Notes which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Outstanding Notes have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date or whether or not a quorum is present at a
meeting of Holders, (A) the principal amount of an Original Issue Discount Note
which shall be deemed to be Outstanding shall be the amount of the principal
thereof which would be due and payable as of such date upon acceleration of the
Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date,
the principal amount payable at the Stated Maturity of a Note is not
determinable, the principal amount of such Note which shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by
Section 3.01, (C) the principal amount of a Note denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 3.01, of the principal amount of such Note
(or, in the case of a Note described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Notes owned by the Company or
any other obligor upon the Notes 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, waiver or other
action, or upon such determination as to the presence of a quorum, only Notes
which the Trustee actually knows to be so owned shall be so disregarded. Notes
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 Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.
5
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Notes on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency, instrumentality
or political subdivision thereof.
"Place of Payment," when used with respect to the Notes of any series,
means the place or places where the principal of and any premium and interest on
the Notes of that series are payable as specified as contemplated by Section
3.01.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Redemption Date," when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Notes of any series means the date specified for that purpose as
contemplated by Section 3.01.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"Sale and Lease-Bank Traction" means any arrangement with any Person
providing for the leasing to the Company of any Operating Property (except for
temporary leases for a term, including any renewal thereof, of not more than
forty-eight (48) months), which Operating Property has been or is to be sold or
transferred by the Company to such Person; provided, however, Sale and
Lease-back Transaction shall not include any arrangement (i) first entered into
prior to the date specified in the first paragraph of this instrument and (ii)
involving the exchange of any Operating Property for any property subject to an
arrangement specified in the preceding clause (i).
6
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Note or any
installment of principal thereof or interest thereon, means the date specified
in such Note as the fixed date on which the principal of such Note or such
installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Notes 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 Notes of any series
shall mean the Trustee with respect to Notes of that series.
"U.S. Government Obligation" has the meaning specified in Section
13.04.
"Value" means, with respect to a Sale and Lease-Back Transaction, as of
any particular time, the amount equal to the greater of (1) the net proceeds to
the Company from the sale or transfer of the property leased pursuant to such
Sale and Lease-Back Transaction or (2) the net book value of such property, as
determined in accordance with generally accepted accounting principles by the
Company at the time of entering into such Sale and Lease-Back Transaction, in
either case multiplied by a fraction, the numerator of which shall be equal to
the number of full years of the term of the lease that is part of such Sale and
Lease-Back Transaction remaining at the time of determination and the
denominator of which shall be equal to the number of full years of such term,
without regard, in any case, to any renewal or extension options contained in
such lease.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
7
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer or an Assistant
Treasurer or Assistant Secretary of the Company, or an Opinion of Counsel, if to
be given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture.
Every certificate (other than certificates pursuant to Section
314(a)(4) of the Trust Indenture Act) or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 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 certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or an Assistant
Treasurer or Assistant Secretary of the Company, stating that the information
with respect to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
8
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officers' Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result or willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Notes issues under the authority of such defective document
or instrument shall nevertheless be the valid obligations of the Company
entitled to the benefits of this Indenture equally and ratably with all other
Outstanding Notes, except as aforesaid.
Section 1.04 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made 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; or, alternatively, may be embodied in and
evidenced by the record of Holders voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article Fourteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
of record are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record of
any meeting of Holders shall be proved in the manner provided in Section 14.06.
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. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
9
The ownership of Notes shall be proved by the Note Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Notes of any series entitled to give,
make or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders of Notes of such series, provided that the Company may not
set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Notes of the relevant series on
such record date, and no other Holders, shall be entitled to take or revoke the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Notes of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Notes of the relevant series on
the date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Notes of the
relevant series in the manner set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Notes of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Notes of such series. If any record
date is set pursuant to this paragraph, the Holders of Outstanding Notes of such
series on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction or to revoke the same, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Notes of such series on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Notes of the relevant series on the
date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Company's expense, shall cause notice of
such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder of Notes of the
relevant series in the manner set forth in Section 1.06.
10
With respect to any record date set pursuant to this Section,
the party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Notes of the relevant series in the manner set
forth in Section 1.06, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the party hereto which set such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Note may do so with
regard to all or any part of the principal amount of such Note or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 1.05 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with, the Trustee by any Holder or by the Company, or the Company by the Trustee
or by any Holder, shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and delivered personally to
an officer or other responsible employee of the addressee, or transmitted by
facsimile transmission or other direct written electronic means to such
telephone number or other electronic communications address as the parties
hereto shall from time to time designate, or transmitted by first-class mail,
charges prepaid, to the applicable address set opposite such party's name below
or to such other address as either party hereto may from time to time designate:
If to the Trustee, to:
The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, New York 10001-2697
Attention: Global Trust Services
Telephone: (212) 946-8595
Telecopy: (212) 946-8160
11
If to the Company, to:
Public Service Company of New Mexico
Alvarado Square
Albuquerque, New Mexico 87158
Attention: Treasurer
Telephone:
Telecopy:
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission or other direct written
electronic means, on the date of transmission, and if transmitted by first-class
mail, on the date of receipt.
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his or her address as it appears in the
Note Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.07 Conflict with Trust Indenture Act.
This Indenture shall be construed as if this Indenture were
qualified under the Trust Indenture Act and governed thereby. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which would be required under such Act to be a part of and govern this
Indenture if this Indenture were so qualified, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act which may be so modified or excluded if this
Indenture were so qualified, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
12
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 1.11 Benefits of Indenture.
The trusts created by this Indenture are for the equal and
proportionate benefit and security of the Holders without any priority of any
Note over any other Note. Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1.12 Governing Law.
This Indenture and the Notes shall be governed by and
construed in accordance with the law of the State of New York, without regard to
conflicts of laws principles thereof.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Note shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Notes (other than a provision of any Note of any series or in the Board
Resolution or Officers' Certificate which establishes the terms of such Notes
which specifically states that such provision shall apply in lieu of this
Section)) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and, if such payment is made or duly provided for on such Business
Day, then no interest shall accrue on the amount so payable for the period from
and after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
13
ARTICLE II
NOTE FORMS
Section 2.01 Forms Generally.
The Notes of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Notes, as evidenced by their execution
thereof. If the form of Notes of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.03 for the authentication and delivery of such Notes.
The definitive Notes shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Notes, as evidenced by their
execution of such Notes.
Section 2.02 Form of Face of Note.
[Insert any legend required by the Internal Revenue Code and
the regulations thereunder.]
PUBLIC SERVICE COMPANY OF NEW MEXICO
...............................
No. .............. $ .............
CUSIP No. ____________
Public Service Company of New Mexico, a corporation duly
organized and existing under the laws of New Mexico (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
..................., or registered assigns, the principal sum of
........................................... Dollars on ................... [if
the Note is to bear interest prior to Maturity, insert - , and to pay interest
thereon from .................... or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on
............ and ............ in each year, commencing .............., at the
rate of ....% per annum, until the principal hereof is paid or made available
for payment [if applicable, insert - , provided that any principal and premium,
and any such installment of interest, which is overdue shall bear interest at
the rate of .....% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until they
are paid or made available for payment, and such interest shall be payable on
demand]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the ............ or ............ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes of this series not less than 10 days prior to such Special Record Date, or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes of this series may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture].
14
[If the Note is not to bear interest prior to Maturity, insert
- - The principal of this Note shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ......% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the
amount so demanded is paid or made available for payment.
Interest on any overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert - any such] interest on this Note will be made at the office
or agency of the Company maintained for that purpose in ............, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts [if applicable, insert - ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Note Register].
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
15
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
PUBLIC SERVICE COMPANY OF
NEW MEXICO
By..............................
Attest:
................................
Section 2.03 Form of Reverse of Note.
This Note is one of a duly authorized issue of senior notes of
the Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of [____________], 1998 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof [if applicable, insert - ,
limited in aggregate principal amount to $...........].
[If applicable, insert - The Notes of this series are subject
to redemption upon not less than 30 days' notice by mail, [if applicable, insert
- - (1) on ........... in any year commencing with the year ........... and ending
with the year ........... through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2)] at any
time [if applicable, insert - on or after .........., 19..], as a whole or in
part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [if applicable,
insert - on or before ..............., ...%, and if redeemed] during the
12-month period beginning ............. of the years indicated,
Year Redemption Year Redemption
Price Price
---- ---------- ---- ----------
16
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Notes, or
one or more Predecessor Notes, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Notes of this series are subject
to redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .........
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ----------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Notes, or one or more Predecessor
Notes, of record at the close of business on the relevant Record Dates referred
to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the
Company may not, prior to ............., redeem any Notes of this series as
contemplated by [if applicable, insert - Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than .....% per annum.]
[If applicable, insert - The sinking fund for this series
provides for the redemption on ............ in each year beginning with the year
....... and ending with the year ...... of [if applicable, insert - not less
than $.......... ("mandatory sinking fund") and not more than] $.........
aggregate principal amount of Notes of this series. Notes of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert - mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
17
[If the Note is subject to redemption of any kind, insert - In
the event of redemption of this Note in part only, a new Note or Notes of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Note] [or] [certain
restrictive covenants and Events of Default with respect to this Note] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Note is not an Original Issue Discount Note, insert -
If an Event of Default with respect to Notes of this series shall occur and be
continuing, the principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture.]
[If the Note is an Original Issue Discount Note, insert - If
an Event of Default with respect to Notes of this series shall occur and be
continuing, an amount of principal of the Notes of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
Such amount shall be equal to [insert formula for determining the amount]. Upon
payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and
premium and interest, if any, on the Notes of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the
Notes at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Notes of each series at the time Outstanding, on behalf of the
Holders of all Notes of such series, to waive compliance by the Company with
certain provisions of the Indenture and to waive certain past defaults under the
Indenture and their consequences, provided, however, that if any such past
default affects more than one series of Notes, the Holders of a majority in
aggregate principal amount of the Outstanding Notes of all such series,
considered as one class, shall have the right to waive such past default, and
not the Holders of the Notes of any one such series. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
18
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than a majority in aggregate
principal amount of the Notes of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Notes of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Note are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Note Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series and of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
19
Section 2.04 Form of Legend for Global Notes.
Unless otherwise specified as contemplated by Section 3.01 for
the Notes evidenced thereby, every Global Note authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Section 2.05 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
CERTIFICATION OF AUTHENTICATION
This is one of the Notes of the series designated therein
referred to in the within-mentioned Indenture.
Dated: [__________________________],
As Trustee
By.........................................
Authorized Officer
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ARTICLE III
THE NOTES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited. The Notes may be
issued in one or more series. There shall be established by or pursuant to a
Board Resolution and, subject to Section 3.03, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Notes of any series,
(1) the title of the Notes of the series (which shall
distinguish the Notes of the series from Notes of any other series);
(2) any limit upon the aggregate principal amount of the Notes
of the series which may be authenticated and delivered under this Indenture
(except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes of the series pursuant to Section
3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Notes which, pursuant to
Section 3.03, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person or Persons (without specific identification) to
whom interest on Notes of such series shall be payable on any Interest Payment
Date, if other than the Persons in whose names such Notes (or one or more
Predecessor Notes) are registered at the close of business on the Regular Record
Date for such interest;
(4) the date or dates on which the principal of the Notes of
such series is payable or any formula or other method or other means by which
such date or dates shall be determined, by reference to an index or other fact
or event ascertainable outside of this Indenture or otherwise (without regard to
any provisions for redemption, prepayment, acceleration, purchase or extension);
(5) the rate or rates at which the Notes of such series shall
bear interest, if any (including the rate or rates at which overdue principal
shall bear interest, if different from the rate or rates at which such Notes
shall bear interest prior to Maturity, and, if applicable, the rate or rates at
which overdue premium or interest shall bear interest, if any), or any formula
or other method or other means by which such rate or rates shall be determined,
by reference to an index or other fact or event ascertainable outside of this
Indenture or otherwise; the date or dates from which such interest shall accrue;
and the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on such Notes on any
Interest Payment Date;
(6) the right, if any, to extend the interest payment periods
and the duration of such extension;
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(7) the place or places at which or methods by which (A) the
principal of and premium, if any, and interest, if any, on Notes of such series
shall be payable, (B) registration of transfer of Notes of such series may be
effected, (C) exchanges of Notes of such series may be effected and (D) notices
and demands to or upon the Company in respect of the Notes of such series and
this Indenture may be served; the Note Registrar and any Paying Agent or Agents
for such series; and if such is the case, that the principal of such Notes shall
be payable without presentment or surrender thereof;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Notes of the series may be
redeemed, in whole or in part, at the option of the Company and, if other than
by a Board Resolution, the manner in which any election by the Company to redeem
the Notes shall be evidenced;
(9) the obligation, if any, of the Company to redeem or
purchase any Notes of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions upon
which any Notes of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Notes of the series shall be
issuable;
(11) if the amount of principal of or any premium or interest
on any Notes of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined to
the extent not established pursuant to clause (5) of this paragraph;
(12) if other than the currency of the United States of
America, the currency, currencies or currency units in which the principal of or
any premium or interest on any Notes of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition of
"Outstanding" in Section 1.01;
(13) if the principal of or any premium or interest on any
Notes of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that or
those in which such Notes are stated to be payable, the currency, currencies or
currency units in which the principal of or any premium or interest on such
Notes as to which such election is made shall be payable, the periods within
which and the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be determined);
(14) if other than the entire principal amount thereof, the
portion of the principal amount of any Notes of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02;
(15) if the principal amount payable at the Stated Maturity of
any Notes of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Notes as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be due and payable
upon any Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);
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(16) if applicable, that the Notes of the series, in whole or
any specified part, shall be defeasible pursuant to Section 13.02 or Section
13.03 or both such Sections and, if other than by a Board Resolution, the manner
in which any election by the Company to defease such Notes shall be evidenced;
(17) if applicable, that any Notes of the series shall be
issuable in whole or in part in the form of one or more Global Notes and, in
such case, the respective Depositaries for such Global Notes, the form of any
legend or legends which shall be borne by any such Global Note in addition to or
in lieu of that set forth in Section 2.04 and any circumstances in addition to
or in lieu of those set forth in Clause (2) of the last paragraph of Section
3.05 in which any such Global Note may be exchanged in whole or in part for
Notes registered, and any transfer of such Global Note in whole or in part may
be registered, in the name or names of Persons other than the Depositary for
such Global Note or a nominee thereof;
(18) any addition to or change in the Events of Default which
applies to any Notes of the series and any change in the right of the Trustee or
the requisite Holders of such Notes to declare the principal amount thereof due
and payable pursuant to Section 5.02;
(19) any addition to or change in the covenants set forth in
Article X which applies to Notes of the series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(5)).
All Notes of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 3.03) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 3.02 Denominations.
Except as permitted by Section 9.01(4), the Notes of each
series shall be issuable only in fully registered form without coupons and only
in such denominations as shall be specified as contemplated by Section 3.01. In
the absence of any such specified denomination with respect to the Notes of any
series, the Notes of such series shall be issuable in denominations of $1,000
and any integral multiple thereof.
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Section 3.03 Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Notes, the Notes shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the Board, its
President or one of its Vice Presidents, or by any other officer or employee of
the Company who is authorized by a Board Resolution to execute the Notes on
behalf of the Company, under its corporate seal affixed thereto or reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these individuals on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers or other employees of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices or be so employed prior to the
authentication and delivery of such Notes or did not hold such offices or were
not so employed at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes of any series executed
by the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Notes, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Notes. In
authenticating such Notes, and accepting the additional responsibilities under
this Indenture in relation to such Notes, the Trustee shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(A) if the form of such Notes has been established by or
pursuant to Board Resolution or in a supplemental indenture as permitted by
Section 2.01, that such form has been duly authorized by the Company and
established in conformity with the provisions of this Indenture;
(B) if the terms of such Notes have been established by or
pursuant to Board Resolution or in a supplemental indenture as permitted by
Section 3.01, that such terms have been duly authorized by the Company and
established in conformity with the provisions of this Indenture;
(C) that such Notes, 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 have been duly issued under the
Indenture and will constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by the Indenture, and enforceable in
accordance with their terms, subject to (a) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles and
(b) the qualification that certain waivers, procedures, remedies, and other
provisions of such Notes and this Indenture may be unenforceable under or
limited by state law; and
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(D) that all consents or approvals of the New Mexico Public
Utility Commission (or any successor agency), the Arizona Corporation Commission
(or any successor agency) and of any federal regulatory agency required in
connection with the Company's execution and delivery of this Indenture or such
series of Notes have been obtained and not withdrawn (except that no statement
need be made with respect to state securities laws or the Federal Power Act).
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Notes if the issue of such Notes
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Notes and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee. Notwithstanding the provisions of
Section 3.01 and of the preceding paragraph, if all Notes of a series are not to
be originally issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 3.01 or the Company
Order and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Note of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Note of such series to be issued.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Note shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Note to the Trustee for cancellation as provided in Section
3.09, for all purposes of this Indenture such Note shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 3.04 Temporary Notes.
Pending the preparation of definitive Notes of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers or other employees of the Company executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes of any series are issued, the Company will
cause definitive Notes of that series to be prepared without unreasonable delay.
After the preparation of definitive Notes of such series, the temporary Notes of
such series shall be exchangeable for definitive Notes of such series upon
surrender of the temporary Notes of such series at the office or agency of the
Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Notes of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor one or more definitive Notes of the same series, of any
authorized denominations and of like tenor and aggregate principal amount. Until
so exchanged, the temporary Notes of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes of such
series and tenor.
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Section 3.05 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office or in
any other office or agency of the Company in a Place of Payment being herein
sometimes referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Trustee is hereby appointed
"Note Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided. Anything herein to the contrary notwithstanding, the Company
may designate one or more of its offices as an office in which a register with
respect to the Notes of one or more series shall be maintained, and the Company
may designate itself the Note Registrar with respect to one or more of such
series; provided, however, that there shall be no more than one Note Register
and one Note Registrar for each series of Notes. The Note Register shall be open
for inspection by the Trustee and the Company at all reasonable times.
Upon surrender for registration of transfer of any Note of a
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Notes of any series may be
exchanged for other Notes of the same series, of any authorized denominations
and of like tenor and aggregate principal amount, upon surrender of the Notes to
be exchanged at such office or agency. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee or
the Note Registrar) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee or the Note
Registrar, as the case may be, duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
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If the Notes of any series (or of any series and specified
tenor) are to be redeemed, the Company shall not be required (A) to issue,
register the transfer of or exchange any Notes of that series (or of that series
and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Notes selected for redemption and ending at the close of
business on the day of such mailing, or (B) to register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Notes:
(1) Each Global Note authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global Note or a
nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Note shall constitute a single Note for
all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes registered, and no
transfer of a Global Note in whole or in part may be registered, in the name of
any Person other than the Depositary for such Global Note or a nominee thereof
unless (A) such Depositary (i) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Note or (ii) has ceased to be a
clearing agency registered under the Exchange Act, (B) there shall have occurred
and be continuing an Event of Default with respect to such Global Note or (C)
there shall exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by Section
3.01.
(3) Subject to Clause (2) above, any exchange of a Global Note
for other Notes may be made in whole or in part, and all Notes issued in
exchange for a Global Note or any portion thereof shall be registered in such
names as the Depositary for such Global Note shall direct.
(4) Every Note authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Note, unless such Note is registered in the name of a Person other than
the Depositary for such Global Note or a nominee thereof.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of the same series and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
27
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note 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 Notes 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 Notes.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Notes, interest on any Note 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 Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Note 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 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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes of such series (or their
respective Predecessor Notes) 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 Note of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall 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
given to each Holder of Notes of such series in the manner set forth in Section
1.06, 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 Notes of such series (or their respective Predecessor Notes) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
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(2) The Company may make payment of any Defaulted Interest on
the Notes of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Notes 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 Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 3.08 Persons Deemed Owners.
Prior to due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of and any premium and
(subject to Section 3.07) any interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Section 3.09 Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Notes previously authenticated hereunder which the Company has
not issued and sold, and all Notes so delivered shall be promptly cancelled by
the Trustee. No Notes shall be authenticated in lieu of or in exchange for any
Notes cancelled as provided in this Section, except as expressly permitted by
this Indenture. All cancelled Notes held by the Trustee shall be disposed of as
directed by a Company Order; provided, however, that the Trustee shall not be
required to destroy such cancelled Notes.
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Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01
for Notes of any series, interest on the Notes of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Notes 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 Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Notes herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A)all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.03) have been delivered to the Trustee for
cancellation; or
(B)all such Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose of making
the following payment, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Notes, money in an amount
sufficient to pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Notes which
have become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
30
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07, the
obligations of the Company to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.03 shall survive.
If the Company shall have paid or caused to be paid the
principal of and premium, if any, and interest on any Note, as and when the same
shall have become due and payable or the Company shall have delivered to the
Trustee for cancellation any outstanding Note, such Note shall cease to be
entitled to any lien or benefit under this Indenture.
Section 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
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ARTICLE V
REMEDIES
Section 5.01 Events of Default.
"Event of Default," wherever used herein with respect to Notes
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Note of
that series when it becomes due and payable, and continuance of such default for
a period of 60 days; or
(2) default in the payment of the principal of or any premium
on any Note of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Note of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of series of Notes other than that series), and
continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of a majority in principal amount of
the Outstanding Notes of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder, unless the Trustee, or the Trustee and Holders of a
principal amount of Notes of such series not less than the principal amount of
Notes the Holders of which gave such notice, as the case may be, shall agree in
writing to an extension of such period prior to its expiration; provided,
however, that the Trustee, or the Trustee and the Holders of such principal
amount of Notes, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the Company within
such period and is being diligently pursued; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition 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 of the Company or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90 consecutive
days; or
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(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of
any substantial part of its property, or the making by it of 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
(7) any other Event of Default provided with respect to Notes
of that series.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Notes of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of a majority in principal amount of the Outstanding
Notes of that series may declare the principal amount of all the Notes of that
series (or, if any Notes of that series are Original Issue Discount Notes, such
portion of the principal amount of such Notes as may be specified by the terms
thereof) to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable; provided, however, that if an Event of Default shall have occurred and
be continuing with respect to more than one series of Notes, the Trustee or the
Holders of not less than a majority in principal amount of the Outstanding Notes
of all such series, considered as one class (and not the Holders of the Notes of
any one of such series), may make such declaration of acceleration.
At any time after such a declaration of acceleration with
respect to Notes of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the related Event of Default and its consequences will be
automatically waived, resulting in an automatic rescission and annulment of the
acceleration of the Notes if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A)all overdue interest on all Notes of that series,
(B)the principal of (and premium, if any, on) any Notes
of that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Notes,
(C)to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates prescribed
therefor in such Notes, and
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(D)all amounts due to the Trustee under Section 6.07;
and
(2) any other Event of Default with respect to Notes of that
series, other than the non-payment of the principal of Notes of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
Section 5.03 Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Note
when such interest becomes due and payable and such default continues for a
period of 60 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund
payment, when and as due by the terms of a Note of that series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor in
such Notes, and, in addition thereto, such further amount as shall be sufficient
to cover any amounts due to the Trustee under Section 6.07.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Notes,
wherever situated.
If an Event of Default with respect to Notes 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 Notes of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.04 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
Notes or the property of the Company or such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
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(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and unpaid in
respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee under Section 6.07)
and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
No provision of this Indenture 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 Notes 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;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
Section 5.05 Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes 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 Notes in respect of which such judgment
has been recovered.
Section 5.06 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 any premium or interest, upon presentation of the Notes in respect of which
or for the benefit of which such monies shall have been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under
Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Notes 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 Notes for principal and any premium and interest, respectively; and
THIRD: To the payment of the balance, if any, to the Company
or any other Person or Persons legally entitled thereto.
Section 5.07 Limitation on Suits.
No Holder of any Note of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Notes of that
series;
(2) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes of all series in respect of which an
Event of Default shall have occurred and be continuing, considered as one class,
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 Notes of all series in respect
of which an Event of Default shall have occurred and be continuing, considered
as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section
3.07) interest on such Note on the respective Stated Maturities expressed in
such Note (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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Section 5.09 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 such Holder shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and such Holder shall continue
as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
3.06, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Notes to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
Section 5.12 Control by Holders.
If an Event of Default shall have occurred and be continuing
in respect of a series of Notes, the Holders of a majority in principal amount
of the Outstanding Notes of such 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 Notes 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
Notes, the Holders of a majority in aggregate principal amount of the
Outstanding Notes of all such series, considered as one class, shall have the
right to make such direction, and not the Holders of the Securities of any one
of such series; and provided, further, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
37
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.01, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal liability.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding
Notes of any series may on behalf of the Holders of all the Notes of such series
waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Note of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent
of the Holder of each Outstanding Note of such series
affected,
provided, however, that if any such default shall have occurred and be
continuing with respect to more than one such series of Notes, the Holders of a
majority in aggregate principal amount of the Outstanding Notes of all such
series, considered as one class, shall have the right to waive such default, and
not the Holders of the Notes of any one such series.
Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
The Company and the Trustee agree, and each Holder of any Note
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Notes of all series in respect of which such
suit may be brought, considered as one class, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, on any Note on or after the Stated Maturity or
Maturities expressed in such Note (or, in the case of redemption, on or after
the Redemption Date).
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Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to Notes of any series,
(1)the Trustee undertakes to perform, with respect to
Notes of such series, such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2)in the absence of bad faith on its part, the Trustee
may, with respect to Notes of such series, conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Notes of any
series shall have occurred and be continuing, the Trustee shall exercise, with
respect to Notes of such series, such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
39
(1)this clause (c) shall not be construed to limit the
effect of clause (a) of this Section;
(2)the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3)the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Notes of any one or more series, as provided herein, relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Notes of such series; and
(4)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 duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.02 Notice of Defaults.
If a default occurs hereunder with respect to Notes of any
series, the Trustee shall give the Holders of Notes of such series notice of
such default known to the Trustee as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 5.01(4) with respect to Notes of such series, no
such notice to Holders shall be given until at least 75 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Notes of such series.
Section 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01 and to applicable
provisions of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
40
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder 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 (subject to
applicable legal requirements) be entitled to examine 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; and
(8) except as otherwise provided in Section 5.01(4), the
Trustee shall not be charged with knowledge of any Event of Default with respect
to the Notes of any series for which it is acting as Trustee unless either (i) a
Responsible Officer of the Trustee shall have actual knowledge of the Event of
Default, or (ii) written notice of such Event of Default shall have been given
to the Trustee by the Company, any other obligor on the Notes or by any Holder
of such Notes.
Section 6.04 Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the
Trustee's 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 Notes. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Notes or the proceeds thereof.
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Section 6.05 May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any
Note Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Sections 6.08
and 6.13, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or
such other agent.
Section 6.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on or investment of any money received
by it hereunder except as expressly provided herein or otherwise agreed with,
and for the sole benefit of, the Company.
Section 6.07 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
as shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless from
and against, any and all loss, damage, claims, liability or expense incurred
without negligence, willful misconduct or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including liability which the Trustee may incur as a result of
failure to withhold, pay or report any tax, assessment or other governmental
charges and the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the Notes
upon all property and funds held or collected by the Trustee as such, except as
otherwise provided in Sections 4.02 and 13.05. "Trustee" for purposes of this
Section shall include any predecessor Trustee; provided, however, that the
negligence, willful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
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In addition to the rights provided to the Trustee pursuant to
the provisions of the immediately preceding paragraph of this Section 6.07, when
the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.01(5) or Section 5.01(6), the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of 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 6.08 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such conflicting interest or resign, to the extent, in the manner and
with the effect, and subject to the conditions provided in the Trust Indenture
Act and this Indenture. To the extent permitted by such Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Notes of more than one series.
Section 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee
hereunder with respect to the Notes of each series, which may be Trustee
hereunder for Notes of one or more other series. Each Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the Notes of any series
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Notes of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 6.11
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Notes of such series.
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(c) The Trustee may be removed at any time with respect to the
Notes of any series by Act of the Holders of a majority in principal amount of
the Outstanding Notes of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1)the Trustee shall fail to comply with Section 6.08
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2)the Trustee shall cease to be eligible under Section
6.09 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 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 a Board Resolution may remove the
Trustee with respect to all Notes, or (B) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Note for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Notes and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Notes of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Notes of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Notes of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Notes of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Notes of any series shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding Notes of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Notes of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Notes of any series shall have been so appointed by
the Company or the Holders and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Note 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 Notes of such series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Notes pursuant to
subsection (e) of this Section, if the Company shall have delivered to the
Trustee (1) a Board Resolution appointing a successor Trustee, effective as of a
date specified therein, and (2) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee in accordance with Section
6.11, the Trustee shall be deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated in Section
6.11, all as of such date, and all other provisions of this Section and Section
6.11 shall be applicable to such resignation, appointment and acceptance except
to the extent inconsistent with this clause (f).
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(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Notes of any series and each
appointment of a successor Trustee with respect to the Notes of any series to
all Holders of Notes of such series in the manner provided in Section 1.06. Each
notice shall include the name of the successor Trustee with respect to the Notes
of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Notes, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Notes of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Notes 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 Notes 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 Notes, 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 Notes of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Notes 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 Notes of that
or those series to which the appointment of such successor Trustee relates.
45
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in clause (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
Section 6.13 Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Notes (other than by reason of a relationship
described in Section 311(b) of the Trustee Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
46
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Notes which shall be authorized to act on
behalf of the Trustee to authenticate Notes of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.06, and Notes 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 Notes by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Notes of
the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
47
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section and to
reimburse such Authenticating Agent, from time to time, for its reasonable
out-of-pocket expenses incurred under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Notes of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Notes of the series designated therein
referred to in the within-mentioned Indenture.
Dated: [______________________,
As Trustee
By.........................................
Authenticating Agent
By.........................................
Authorized Officer
48
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee
(1) fifteen days after each Regular Record Date, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders of Notes of each series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Note Registrar.
Section 7.02 Preservation of Information; Communications to
Holders.
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.01 and the names
and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Notes, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 7.03 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee
shall, within sixty days after each May 15 following the date of this Indenture
deliver to Holders a brief report, dated as of such May 15, which complies with
the provisions of such Section 313(a).
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A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Notes are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when any Notes are listed on any stock
exchange.
Section 7.04 Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
Delivery of such information, documents and reports to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a Person organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium, and interest on all the
Notes and the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company as a result
of such transaction as having been incurred by the Company at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
50
Section 8.02 Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Notes outstanding hereunder.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
herein and in the Notes, all as provided in Article VIII; or
(2) to add to the covenants of the Company or other provisions
for the benefit of the Holders of all or any series of Notes (and if such
covenants are to be for the benefit of less than all series of Notes, 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 for the benefit of
the Holders of all or any series of Notes (and if such additional Events of
Default are to be for the benefit of less than all series of Notes, stating that
such additional Events of Default are expressly being included solely for the
benefit of such series); 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 Notes in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or facilitate the
issuance of Notes in uncertificated form; or
(5) to change or eliminate any provision of this Indenture or
to add any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of the
Holders of Notes of any series Outstanding on the date of such indenture
supplemental hereto in any material respect, such change, elimination or
addition shall become effective (1) with respect to such series only pursuant to
the provisions of Section 9.02 hereof or (2) when no Note of such series remains
Outstanding; or
51
(6) to secure the Notes; or
(7) to establish the form or terms of Notes of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes 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
6.11; 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 changes to the provisions hereof or to add other
provisions with respect to matters or questions arising under this Indenture,
provided that such other changes or additions shall not adversely affect the
interests of the Holders of Notes of any series in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date specified in the first paragraph of this
instrument or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to
any provisions hereof or the inclusion herein of any additional
provisions, or shall by operation of law be deemed to effect such
changes or incorporate such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended so as to conform to such
amendment to the Trust Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes or additional
provisions; or
(y) if any such amendment shall permit one or more changes to,
or the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof or at any time thereafter, are required
by the Trust Indenture Act to be contained herein, this Indenture shall
be deemed to have been amended to effect such changes or elimination,
and the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to evidence such
amendment hereof.
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Section 9.02 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of all series then Outstanding under
this Indenture, considered as one class, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture; provided, however, that if
there shall be Notes of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Notes of one or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Notes of all series so directly affected, considered as one class,
shall be required; and provided, further, that no such supplemental indenture
shall:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Note, or reduce the principal
amount thereof or the rate of interest thereon (or the amount of any installment
of interest thereon) or change the method of calculating such rate or reduce any
premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Note or any other Note which would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or change the coin or currency (or other property) in
which any Note or any premium or 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), without, in any such case, the consent of the Holder of such
Note, or
(2) reduce the percentage in principal amount of the
Outstanding Notes 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 any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section 14.04 for
quorum or voting, without, in any such case, the consent of the Holder of such
Note, or
(3) modify any of the provisions of this Section, Section 5.13
or Section 10.08 with respect to the Notes of any series, 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 Note affected thereby; provided, however, that this clause shall not
be deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and Section
10.08, or the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 9.01(8).
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 Notes, or which
modifies the rights of the Holders of Notes 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 Notes of any other series.
53
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. A
waiver by a Holder of such Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) 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.
Any supplemental indenture permitted by this Article may be
executed on behalf of the Company by any officers or employees that are
authorized to do so in a Board Resolution, under its corporate seal affixed
thereto or reproduced thereon attested to by its Secretary or one of its
Assistant Secretaries.
Section 9.04 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 Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 9.06 Reference in Notes to Supplemental Indentures.
Notes 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 Notes 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 delivered by the
Trustee in exchange for Outstanding Notes of such series.
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ARTICLE X
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Notes that it will duly and punctually pay the principal of and any
premium and interest on the Notes of that series in accordance with the terms of
the Notes and this Indenture.
Section 10.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Notes an office or agency where Notes of that series may be presented
or surrendered for payment, where Notes 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 Notes of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Notes of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Notes of any series for such purposes.
The Company will give prompt written notice to the Trustee , and prompt notice
to Holders in the manner specified in Section 1.06, of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 10.03 Money for Notes 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 Notes, it will, on or before each due date of the
principal of or any premium or interest on any of the Notes of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and 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 Notes, it will, on or prior to each due date of the principal of
or any premium or interest on any Notes of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any series of
Notes other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2)
during the continuance of any default by the Company (or any other obligor upon
the Notes of that series) in the making of any payment in respect of the Notes
of that series, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Notes of that series.
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 or any
premium or interest on any Note of any series and remaining unclaimed for two
years after such principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 10.05 Restrictions on Liens.
(a) So long as any Notes are Outstanding, the Company will not
issue, assume, or guarantee any Debt secured by any mortgage, security interest,
pledge, or lien (herein referred to as a "mortgage") of or upon any Operating
Property of the Company, whether owned at the date specified in the first
paragraph of this instrument or thereafter acquired, without in any such case
effectively securing the Outstanding Notes (together with, if the Company shall
so determine, any other Debt of or guaranteed by the Company ranking senior to,
or equally with, the Notes) equally and ratably with such Debt; provided,
however, that the foregoing restriction shall not apply to Debt secured by any
of the following:
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(i) mortgages on any property existing at the time
of acquisition thereof;
(ii) mortgages on property of a corporation existing
at the time such corporation is merged into or consolidated with the
Company, or at the time of a sale, lease, or other disposition of the properties
of such corporation or a division thereof as an entirety or substantially as an
entirety to the Company, provided that such mortgage as a result of such merger,
consolidation, sale, lease, or other disposition is not extended to property
owned by the Company immediately prior thereto;
(iii) mortgages on property to secure all or part of
the cost of acquiring, constructing, developing, or substantially
repairing, altering, or improving such property, or to secure indebtedness
incurred to provide funds for any such purpose or for reimbursement of funds
previously expended for any such purpose, provided such mortgages are created or
assumed contemporaneously with, or within eighteen (18) months after, such
acquisition or completion of construction, development, or substantial repair,
alteration, or improvement or within six (6) months thereafter pursuant to a
commitment for financing arranged with a lender or investor within such eighteen
(18) month period;
(iv) mortgages in favor of the United States of
America or any State thereof, or any department, agency, or instrumentality or
political subdivision of the United States of America or any State thereof, or
for the benefit of holders of securities issued by any such entity, to secure
any Debt incurred for the purpose of financing all or any part of the purchase
price or the cost of constructing, developing, or substantially repairing,
altering, or improving the property subject to such mortgages;
(v) mortgages on any property (x) which, at any time
subsequent to January 1, 1985 through the date specified in the first paragraph
of this instrument, was leased to the Company, or, (y) pursuant to the terms of
any lease to the Company in effect at any time subsequent to January 1, 1985
through the date specified in the first paragraph of this instrument, title to
which would not have been vested in the Company (assuming such lease remained in
effect on the date of determination as such lease was in effect immediately
prior to the date of this Indenture); or
(vi) any extension, renewal or replacement (or
successive extensions, renewals, or replacements), in whole or in part, of any
mortgage referred to in the foregoing clauses (i) to (v), inclusive; provided,
however, that the principal amount of Debt secured thereby and not otherwise
authorized by said clauses (i) to (v), inclusive, shall not exceed the principal
amount of Debt, plus any premium or fee payable in connection with any such
extension, renewal, or replacement, so secured at the time of such extension,
renewal, or replacement.
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(b) Notwithstanding the provisions of Section 10.05(a), so
long as any Notes are Outstanding, the Company may issue, assume, or guarantee
Debt, or permit to exist Debt, secured by mortgages which would otherwise be
subject to the restrictions of Section 10.05(a) up to an aggregate principal
amount that, together with the principal amount of all other Debt of the Company
secured by mortgages (other than mortgages permitted by Section 10.05(a) that
would otherwise be subject to the foregoing restrictions) and the Value of all
Sale and Lease-Back Transactions in existence at such time (other than any Sale
and Lease-Back Transaction that, if such Sale and Lease-Back Transaction had
been a mortgage, would have been permitted by Section 10.05(a), other than Sale
and Lease-Back Transactions permitted by Section 10.10 because the commitment by
or on behalf of the purchaser was obtained no later than eighteen (18) months
after the later of events described in (i) or (ii) of Section 10.10, and other
than Sale and Lease-Back Transactions as to which application of amounts have
been made in accordance with clause (z) of Section 10.10), does not at the time
exceed the greater of ten percent (10%) of Net Tangible Assets or ten percent
(10%) of Capitalization.
(c) If at any time the Company shall issue, assume, or
guarantee any Debt secured by any mortgage and if Section 10.05(a) requires that
the Outstanding Notes be secured equally and ratably with such Debt, the Company
will promptly execute, at its expense, any instruments necessary to so equally
and ratably secure the Outstanding Notes and deliver the same to the Trustee
along with:
(i) An Officers' Certificate stating that the
covenant of the Company contained in Section 10.05(a) has been complied with;
and
(ii) An Opinion of Counsel to the effect that the
Company has complied with the covenant contained in Section 10.05(a), and
that any instrument executed by the Company in the performance of such covenant
complies with the requirements of such covenant.
In the event that the Company shall hereafter secure
Outstanding Notes equally and ratably with any other obligation or indebtedness
pursuant to the provisions of this Section 10.05, the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may, in its sole and absolute discretion, deem
advisable to enable it to enforce effectively the rights of the Holders of
Outstanding Notes so secured, equally and ratably with such other obligation or
indebtedness.
Section 10.06 Corporate Existence.
Subject to the rights of the Company under Article VIII, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
Section 10.07 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 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 it properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business.
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Section 10.08 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in (a) Section 10.02 or any
additional covenant or restriction specified with respect to the Notes of any
series as contemplated by Section 3.01 if before the time for such compliance
the Holders of at least a majority in aggregate principal amount of the
Outstanding Notes of all series with respect to which compliance with Section
10.02 or such additional covenant or restriction is to be omitted, considered as
one class, shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition
and (b) Section 10.07 or Article VIII if before the time for such compliance the
Holders of at least a majority in principal amount of Notes Outstanding under
this Indenture shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
Section 10.09 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Notes as of the end of such year.
Section 10.10 Restrictions on Sale and Lease-Back Transactions.
So long as any Notes are Outstanding, the Company will not
enter into any Sale and Lease-Back Transaction with respect to any Operating
Property if, in any case, the commitment by or on behalf of the purchaser is or
was obtained more than eighteen (18) months after the later of (i) the
completion of the acquisition, construction, or development of such Operating
Property or (ii) the placing in operation of such Operating Property or of such
Operating Property as constructed, developed, or substantially repaired,
altered, or improved, unless (x) the Company would be entitled pursuant to
Section 10.05(a) to issue, assume, or guarantee Debt secured by a mortgage on
such Operating Property without equally and ratably securing the Notes or (y)
the Company would be entitled pursuant to Section 10.05(b), after giving effect
to such Sale and Lease-Back Transaction, to incur $1.00 of additional Debt
secured by mortgages (other than mortgages permitted by Section 10.05(a)) or (z)
the Company shall apply or cause to be applied, in the case of a sale or
transfer for cash, an amount equal to the net proceeds thereof (but not in
excess of the net book value of such Operating Property at the date of such sale
or transfer) and, in the case of a sale or transfer otherwise than for cash, an
amount equal to the fair value (as determined by the Board of Directors) of the
Operating Property so leased, to the retirement, within one hundred eighty (180)
days after the effective date of such Sale and Lease-Back Transaction, of Debt
of the Company ranking senior to, or equally with, the Notes; provided, however,
that the amount to be applied to such retirement of Debt shall be reduced by an
amount equal to the principal amount, plus any premium or fee paid in connection
with any redemption in accordance with the terms of Debt voluntarily retired by
the Company within such one hundred eighty (180) day period, excluding
retirement pursuant to mandatory sinking fund or prepayment provisions and
payments at maturity.
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ARTICLE XI
REDEMPTION OF NOTES
Section 11.01 Applicability of Article.
Notes of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for such Notes) in
accordance with this Article.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes shall be
evidenced by a Board Resolution, in an Officer's Certificate or in another
manner specified as contemplated by Section 3.01 for such Notes. In case of any
redemption at the election of the Company, the Company shall, at least 45 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, of
the principal amount of Notes of such series to be redeemed and, if applicable,
of the tenor of the Notes to be redeemed. In the case of any redemption of Notes
(a) prior to the expiration of any restriction on such redemption provided in
the terms of such Notes or elsewhere in this Indenture, or (b) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Notes or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.03 Selection by Trustee of Notes to be Redeemed.
If less than all the Notes of any series are to be redeemed,
the particular Notes to be redeemed shall be selected by the Trustee from the
Outstanding Notes of such series not previously called for redemption, by such
method as shall be provided for any particular series or, in the absence of any
such provision, by such method of random selection as the Trustee shall deem
fair and appropriate and which may, in any case, provide for the selection for
redemption of portions (equal to the minimum authorized denomination for Notes
of such series or any integral multiple thereof) of the principal amount of
Notes of such series of a denomination larger than the minimum authorized
denomination for Notes of such series; provided, however, that if, as indicated
in an Officer's Certificate, the Company shall have offered to purchase all or
any principal amount of the Notes then Outstanding of any series, and less than
all of such Notes as to which such offer was made shall have been tendered to
the Company for such purchase, the Trustee, if so directed by Company Order,
shall select for redemption all or any principal amount of such Notes which have
not been so tendered.
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The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption as aforesaid and, in case of any Notes
selected for partial redemption as aforesaid, 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 Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Notes which has been or is to be
redeemed.
Section 11.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at his address
appearing in the Note Register.
All notices of redemption shall identify the Notes to be
redeemed (including CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes of any series and
of a specified tenor consisting of more than a single Note are to be redeemed,
the identification (and, in the case of partial redemption of any such Notes,
the principal amounts) of the particular Notes to be redeemed and, if less than
all the Outstanding Notes of any series and of a specified tenor consisting of a
single Note are to be redeemed, the principal amount of the particular Note to
be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Note is 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) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Notes in
accordance with Section 3.01, with respect to any notice of redemption of Notes
at the election of the Company, unless, upon the giving of such notice, such
Notes shall be deemed to have been paid in accordance with Article IV, such
notice may state that such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Notes, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of and premium, if
any, and interest, if any, on such Notes and that if such money shall not have
been so received such notice shall be of no force or effect and the Company
shall not be required to redeem such Notes. In the event that such notice of
redemption contains such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to be made,
and the Paying Agent or Agents for the Notes otherwise to have been redeemed
shall promptly return to the Holders thereof any of such Notes which had been
surrendered for payment upon such redemption.
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Notice of redemption of Notes to be redeemed at the election
of the Company, and any notice of non-satisfaction of a condition for redemption
as aforesaid, 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. Notice of mandatory
redemption of Securities shall be given by the Trustee in the name and at the
expense of the Company.
Section 11.05 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) 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 Notes which are to be redeemed on that date.
Section 11.06 Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the Notes 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, in the
case of an unconditional notice of redemption, the Company shall default in the
payment of the Redemption Price and accrued interest) such Notes shall cease to
bear interest. Upon surrender of any such Note for redemption in accordance with
said notice, such Note shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by Section 3.01,
installments of interest whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Notes, or one or more Predecessor
Notes, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.07.
Section 11.07 Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes of the same series and of like tenor, 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 Note so surrendered.
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ARTICLE XII
SINKING FUNDS
Section 12.01 Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Notes of any series except as otherwise
specified as contemplated by Section 3.01 for such Notes.
The minimum amount of any sinking fund payment provided for by
the terms of any Notes 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 such Notes is herein referred to as an "optional sinking fund payment".
If provided for by the terms of any Notes, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.02. Each sinking
fund payment shall be applied to the redemption of Notes as provided for by the
terms of such Notes.
Section 12.02 Satisfaction of Sinking Fund Payments with Notes.
The Company (1) may deliver Outstanding Notes of a series
(other than any previously called for redemption) and (2) may apply as a credit
Notes of a series which have been (a) redeemed either at the election of the
Company pursuant to the terms of such Notes or through the application of
permitted optional sinking fund payments pursuant to the terms of such Notes or
(b) purchased by the Company in the open market, by tender offer or otherwise,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Notes of such series required to be made pursuant to the terms of
such Notes as and to the extent provided for by the terms of such Notes;
provided that the Notes to be so credited have not been previously so credited.
The Notes to be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the Notes so to be
redeemed, for redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
Section 12.03 Redemption of Notes for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any Notes, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such Notes
pursuant to the terms of such Notes, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Notes pursuant to Section 12.02 and
stating the basis for such credit and that such Notes have not been previously
so credited and will also deliver to the Trustee any Notes to be so delivered.
Not less than 30 days prior to each such sinking fund payment date, the Trustee
shall select the Notes to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.03 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 11.04. Such notice having been duly given, the redemption of such
Notes shall be made upon the terms and in the manner stated in Sections 11.06
and 11.07.
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ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01 Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have
Section 13.02 or Section 13.03 applied to any Notes or any series of Notes, as
the case may be, designated pursuant to Section 3.01 as being defeasible
pursuant to such Section 13.02 or 13.03, in accordance with any applicable
requirements provided pursuant to Section 3.01 and upon compliance with the
conditions set forth below in this Article. Any such election shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
3.01 for such Notes.
Section 13.02 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Notes or any series of Notes, as the case may be,
the Company shall be deemed to have been discharged from its obligations with
respect to such Notes as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Notes and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same),
subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such Notes to receive, solely
from the trust fund described in Section 13.04 and as more fully set forth in
such Section, payments in respect of the principal of and any premium and
interest on such Notes when payments are due, (2) the Company's obligations with
respect to such Notes under Sections 3.04, 3.05, 3.06, 10.02 and 10.03 and with
respect to the Trustee under Section 6.07, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Notes notwithstanding the prior exercise of its
option (if any) to have Section 13.03 applied to such Notes.
Section 13.03 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Notes or any series of Notes, as the case may be,
(1) the Company shall be released from its obligations under Sections 10.05,
10.07, and 10.10, and any covenants provided pursuant to Section 3.01(19),
9.01(2), 9.01(6) or 9.01(7) and 5.01(7) for the benefit of the Holders of such
Notes and (2) the occurrence of any event specified in Section 5.01(4) (with
respect to any of Sections 10.05, 10.07, and 10.10, and any such covenants
provided pursuant to Section 3.01(19), 9.01(2), 9.01(6) or 9.01(7)) and 5.01(7))
shall be deemed not to be or result in an Event of Default with respect to such
Notes as provided in this Section on and after the date the conditions set forth
in Section 13.04 are satisfied (hereinafter called "Covenant Defeasance"). For
this purpose, such Covenant Defeasance means that, with respect to such Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 5.01(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Notes shall be
unaffected thereby.
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Section 13.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 13.02 or Section 13.03 to any Notes or any series of Notes, as the case
may be:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Notes, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, the principal of
and any premium and interest on such Notes on the respective Stated Maturities
or on any Redemption Date established pursuant to Clause (9) below, in
accordance with the terms of this Indenture and such Notes. As used herein,
"U.S. Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt.
(2) In the event of an election to have Section 13.02 apply to
any Notes or any series of Notes, as the case may be, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such Notes
will not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to such Notes
and will be subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
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(3) In the event of an election to have Section 13.03 apply to
any Notes or any series of Notes, as the case may be, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
such Notes will not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect to
such Notes and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that neither such Notes nor any other Notes
of the same series, if then listed on any securities exchange, will be delisted
as a result of such deposit.
(5) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Notes or any other
Notes shall have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 5.01(5) and (6), at any time on
or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Notes are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) If the Notes are to be redeemed prior to Stated Maturity
(other than from mandatory sinking fund payments or analogous payments), notice
of such redemption shall have been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee shall have been made.
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
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Section 13.05 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
10.03, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 13.04 in respect of any
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any such Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Notes, of all sums
due and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 13.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Notes.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 13.04 with respect to any Notes which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to such Notes.
Section 13.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any Notes by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Notes from which the Company has been discharged or released
pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no
deposit had occurred pursuant to this Article with respect to such Notes, until
such time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 13.05 with respect to such Notes in accordance with
this Article; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any such Note following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Notes to receive such payment from the money so
held in trust.
ARTICLE XIV
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 14.01 Purposes for Which Meetings May Be Called.
A meeting of Holders of Notes of one or more, or all, series
may be called at any time and from time to time pursuant to this Article to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made, given or
taken by Holders of Notes of such series.
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Section 14.02 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Notes of one or more, or all, series for any purpose specified in Section 14.01,
to be held at such time and at such place in the Borough of Manhattan, The City
of New York, as the Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section
1.06, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to call a meeting
of the Holders of Notes of one or more, or all, series by the Company or by the
Holders of 33% in aggregate principal amount of Notes of all of such series,
considered as one class, for any purpose specified in Section 14.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the Holders
of Notes of such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City of New
York, or in such other place as shall be determined or approved by the Company,
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in clause (a) of this Section.
(c) Any meeting of Holders of Notes of one or more, or all,
series shall be valid without notice if Holders of all Outstanding Notes of such
series are present in person or by proxy and if representatives of the Company
and the Trustee are present, or notice is waived in writing before or after the
meeting by the Holders of all Outstanding Notes of such series or by such of
them as are not present at the meeting in person or by proxy, and by the Company
and the Trustee.
Section 14.03 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Notes of
one or more, or all, series, a Person shall be (a) a Holder of one or more
Outstanding Notes of such series, or (b) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding Notes of
such series by such Holder or Holders. The only persons who shall be entitled to
attend any meeting of Holders of Notes of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 14.04 Quorum: Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Notes of the series with respect to which a meeting
shall have been called as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Notes of such series; provided,
however, that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified percentage, which
is less than a majority, in principal amount of the Outstanding Notes of such
series, considered as one class, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Notes of such series,
considered as one class, shall constitute a quorum. In the absence of a quorum
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within one hour of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Notes of such series, be dissolved. In
any other case the meeting may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as provided
by clause (e) of Section 14.05, notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided in clause (a) of
Section 14.02 not less than ten days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Notes of such series which shall constitute a quorum.
Except as limited by Section 9.02, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Notes of the series
with respect to which such meeting shall have been called, considered as one
class; provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Notes of such series, considered as one
class, may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Notes of
such series, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Notes duly held in accordance with this Section shall be binding on
all the Holders of Notes of the series with respect to which such meeting shall
have been held, whether or not present or represented at the meeting.
Section 14.05 Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Notes may be in
person or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the Notes with respect
to which it was given unless and until specifically revoked by the Holder or
future Holder of such Notes before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Notes in regard to proof of the holding of such Notes
and of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Notes shall be
proved in the manner specified in Section 1.04 and the appointment of any proxy
shall be proved in the manner specified in Section 1.04. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.04 or
other proof.
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(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in clause (b) of Section 14.02, in which
case the Company or the Holders of Notes of the series calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Notes of all series represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall be entitled to
one vote for each $1 principal amount of Notes held or represented by him or
her; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Note or proxy.
(e) Any meeting duly called pursuant to Section 14.02 at which
a quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of the Outstanding Notes of all
series represented at the meeting, considered as one class; and the meeting may
be held as so adjourned without further notice.
Section 14.06 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the signatures
of the Holders or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Notes, of the series with respect to which
the meeting shall have been called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 14.02 and, if
applicable, Section 14.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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Section 14.07 Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 1.04.
ARTICLE XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 15.01 Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Notes, or any part thereof, or
for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, employee, officer
or director, as such, past, present or future of the Company or of any
predecessor or successor corporation (either directly or through the Company or
a predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all Notes are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any incorporator,
stockholder, employee, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in any of the Notes or to
be implied herefrom or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Notes.
----------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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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.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By...............................
Name:
Title:
Attest:
..........................
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By................................
Name:
Title:
Attest:
..........................
Name:
Title:
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STATE OF NEW MEXICO )
) ss.:
COUNTY OF BERNALILLO )
On the ____ day of __________ before me personally came ______________, to me
known, who, being by me duly sworn, did depose and say that [s]he is
____________ of Public Service Company of New Mexico, one of the corporations
described in and which executed the foregoing instrument; that [s]he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that [s]he signed [her] [his] name thereto by like
authority.
.....................................
My Commission Expires
................
STATE OF ____________ )
) ss.:
COUNTY OF _________ )
On the ____ day of ___________, before me personally came _____________, to
me known, who, being by me duly sworn, did depose and say that [s]he is
____________ of The Chase Manhattan Bank, one of the corporations described in
and which executed the foregoing instrument; that [s]he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that [s]he signed [her] [his] name thereto by like authority.
.....................................
My Commission Expires
................
48322
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