Exhibit 4(a)
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SOUTHWESTERN ELECTRIC POWER COMPANY
and
THE BANK OF NEW YORK,
AS TRUSTEE
-------------------
INDENTURE
Dated as of February 25, 2000
-------------------
Senior Notes
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Reconciliation and tie between the Trust Indenture Act of 1939 and
Indenture, dated as of February 25, 2000
Trust Indenture
Act Section Indenture Section
ss.310(a)(1)..........................................609
(a)(2)..........................................609
(a)(3)..........................................Not Applicable
(a)(4)..........................................Not Applicable
(a)(5)..........................................609
(b).............................................608, 610
(c) ............................................Not Applicable
ss.311(a).............................................613(a)
(b).............................................613(b)
(b)(2)..........................................703(a)(3),
703(b)
(c).............................................Not Applicable
ss.312(a).............................................701, 702(a)
(b).............................................702(b)
(c).............................................702(c)
ss.313(a).............................................703(a)
(b).............................................703(b)
(c).............................................703(a), 703(b)
(d).............................................703(c)
ss.314(a).............................................704
(a)(4)..........................................1008
(b).............................................Not Applicable
(c)(1)..........................................102
(c)(2)..........................................102
(c)(3)..........................................Not Applicable
(d).............................................Not Applicable
(e).............................................102
(f).............................................Not Applicable
ss.315(a).............................................601(a)
(b).............................................602, 703(a)(8)
(c).............................................601(b)
(d).............................................601(c)
(d)(1)..........................................601(a)(1)
(d)(2)..........................................601(c)(2)
(d)(3)..........................................601(c)(3)
(e) ............................................514
ss.316(a)(1)(A).......................................512
(a)(1)(B).......................................502, 513
(a)(2)..........................................Not Applicable
(b).............................................508
(c).............................................104(e)
ss.317(a)(1)..........................................503
(a)(2)..........................................504
(b).............................................1003
ss.318(a).............................................107
Note:.This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY..........................................7
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION......................................................8
SECTION 101. Definitions.........................................8
Act........................................................8
Affiliate..................................................8
Authenticating Agent.......................................8
Board of Directors.........................................8
Board Resolution...........................................9
Business Day...............................................9
Commission.................................................9
Company....................................................9
Company Order" or "Company Request.........................9
Corporate Trust Office.....................................9
corporation................................................9
default....................................................9
Defaulted Interest.........................................9
Depositary.................................................9
Discharged.................................................9
Event of Default...........................................9
Exchange Act..............................................10
Global Security...........................................10
Holder....................................................10
Indebtedness..............................................10
Indenture.................................................10
interest..................................................10
Interest Payment Date.....................................10
Lien......................................................10
Maturity..................................................10
Net Tangible Assets.......................................10
Officers' Certificate.....................................10
Opinion of Counsel........................................10
Original Issue Discount Security..........................10
Outstanding...............................................10
Paying Agent..............................................10
Periodic Offering.........................................10
Person....................................................10
Place of Payment..........................................10
Predecessor Security......................................10
Redemption Date...........................................10
Redemption Price..........................................10
Regular Record Date.......................................10
Repayment Price...........................................10
Responsible Officer.......................................10
Security..................................................10
Security Register" and "Security Registrar................10
Special Record Date.......................................10
Stated Maturity...........................................10
Subsidiary................................................10
Trustee...................................................10
Trust Indenture Act.......................................10
U.S. Government Obligations...............................10
Vice President............................................10
SECTION 102. Compliance Certificates and Opinions...............10
SECTION 103. Form of Documents Delivered to Trustee.............10
SECTION 104. Acts of Holders....................................10
SECTION 105. Notices, Etc., to Trustee and Company..............10
SECTION 106. Notice to Holders; Waiver..........................10
SECTION 107. Conflict with Trust Indenture Act..................10
SECTION 108. Effect of Headings, Table of Contents, Etc.........10
SECTION 109. Successors and Assigns.............................10
SECTION 110. Separability Clause................................10
SECTION 111. Benefits of Indenture..............................10
SECTION 112. Governing Law......................................10
SECTION 113. Legal Holidays.....................................10
SECTION 114. No Recourse Against Others.........................10
ARTICLE TWO SECURITY FORMS.....................................10
SECTION 201. Forms Generally....................................10
SECTION 202. Form of Face of Security...........................10
SECTION 203. Form of Reverse of Security........................10
SECTION 204. Form of Trustee's Certificate of Authentication....10
ARTICLE THREE THE SECURITIES...................................10
SECTION 301. Amount Unlimited; Issuable in Series...............10
SECTION 302. Denominations......................................10
SECTION 303. Execution, Authentication, Delivery and Dating.....10
SECTION 304. Temporary Securities...............................10
SECTION 305. Registration, Registration of Transfer and Exchange.10
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...10
SECTION 307. Payment of Interest; Interest Rights Preserved.....10
SECTION 308. Persons Deemed Owners..............................10
SECTION 309. Cancellation.......................................10
SECTION 310. Computation of Interest............................10
SECTION 311. Global Securities..................................10
SECTION 312. Periodic Offering of Securities....................10
SECTION 313. CUSIP Numbers......................................10
ARTICLE FOUR SATISFACTION AND DISCHARGE........................10
SECTION 401. Satisfaction and Discharge of Indenture............10
SECTION 402. Application of Trust Money.........................10
SECTION 403. Satisfaction, Discharge and Defeasance of Securities
of any Series...................................................10
ARTICLE FIVE REMEDIES..........................................10
SECTION 501. Events of Default..................................10
SECTION 502. Acceleration of Maturity; Rescission and Annulment.10
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................................10
SECTION 504. Trustee May File Proofs of Claim...................10
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities......................................................10
SECTION 506. Application of Money Collected.....................10
SECTION 507. Limitation on Suits................................10
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................................10
SECTION 509. Restoration of Rights and Remedies.................10
SECTION 510. Rights and Remedies Cumulative.....................10
SECTION 511. Delay or Omission Not Waiver.......................10
SECTION 512. Control by Holders.................................10
SECTION 513. Waiver of Past Defaults............................10
SECTION 514. Undertaking for Costs..............................10
ARTICLE SIX THE TRUSTEE........................................10
SECTION 601. Certain Duties and Responsibilities................10
SECTION 602. Notice of Defaults.................................10
SECTION 603. Certain Rights of Trustee..........................10
SECTION 604. Not Responsible for Recitals or Issuance of
Securities......................................................10
SECTION 605. May Hold Securities................................10
SECTION 606. Money Held in Trust................................10
SECTION 607. Compensation and Reimbursement.....................10
SECTION 608. Conflicting Interests..............................10
SECTION 609. Corporate Trustee Required; Eligibility............10
SECTION 610. Resignation and Removal; Appointment of Successor
Trustee.........................................................10
SECTION 611. Acceptance of Appointment by Successor.............10
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business........................................................10
SECTION 613. Preferential Collection of Claims Against Company..10
SECTION 614. Authenticating Agents..............................10
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY10
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.........................................................10
SECTION 702. Preservation of Information; Communications to
Holders.........................................................10
SECTION 703. Reports by Trustee.................................10
SECTION 704. Reports by Company.................................10
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER
10
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms...........................................10
SECTION 802. Successor Person to be Substituted.................10
ARTICLE NINE SUPPLEMENTAL INDENTURES...........................10
SECTION 901. Supplemental Indentures without Consent of Holders.10
SECTION 902. Supplemental Indentures with Consent of Holders....10
SECTION 903. Execution of Supplemental Indentures...............10
SECTION 904. Effect of Supplemental Indentures..................10
SECTION 905. Conformity with Trust Indenture Act................10
SECTION 906. Reference in Securities to Supplemental Indentures.10
ARTICLE TEN COVENANTS..........................................10
SECTION 1001. Payment of Principal, Premium and Interest........10
SECTION 1002. Maintenance of Office or Agency...................10
SECTION 1003. Money for Securities Payments to Be Held in Trust.10
SECTION 1004. Corporate Existence...............................10
SECTION 1005. Maintenance of Properties.........................10
SECTION 1006. Maintenance of Insurance..........................10
SECTION 1007. Limitation on Liens...............................10
SECTION 1008. Statement by Officers as to Default...............10
SECTION 1009. Defeasance of Certain Obligations.................10
SECTION 1010. Waiver of Certain Covenants.......................10
SECTION 1011. Further Assurances................................10
ARTICLE ELEVEN REDEMPTION OF SECURITIES........................10
SECTION 1101. Applicability of Article..........................10
SECTION 1102. Election to Redeem; Notice to Trustee.............10
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.10
SECTION 1104. Notice of Redemption..............................10
SECTION 1105. Deposit of Redemption Price.......................10
SECTION 1106. Securities Payable on Redemption Date.............10
SECTION 1107. Securities Redeemed in Part.......................10
ARTICLE TWELVE SINKING FUNDS...................................10
SECTION 1201. Applicability of Article..........................10
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities......................................................10
SECTION 1203. Redemption of Securities for Sinking Fund.........10
ARTICLE THIRTEEN MISCELLANEOUS.................................10
SECTION 1301. Counterparts......................................10
TESTIMONIUM.....................................................60
SIGNATURE AND SEALS.............................................60
INDENTURE, dated as of February 25, 2000, between SOUTHWESTERN
ELECTRIC POWER COMPANY, a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), having its principal office at 428
Travis Street, Shreveport, Louisiana 71156-0001 and THE BANK OF NEW YORK, a New
York banking corporation, as Trustee (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 certain of its
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(i) the terms defined in this Section have the meanings ascribed to
them in this Section and include the plural as well as the singular;
(ii) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
ascribed to them therein;
(iii) all accounting terms not otherwise defined herein have the
meanings ascribed to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(iv) 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; and
(v) certain terms used in Section 613 have the meanings ascribed to
them in such Section.
The following terms have the following meanings:
"Act", when used with respect to any Holder, has the meaning
specified in Section 104 hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to authenticate
and deliver Securities on behalf of the Trustee pursuant to Section 614 hereof.
"Board of Directors" means either the board of directors of the
Company or any committee thereof duly authorized to act in respect of maters
relating to this Indenture. When used with reference to any other Person, Board
of Directors means the body or Person authorized by law or the organic
instruments under which such Person is organized to exercise similar discretion
on behalf of any other obligor on the Securities.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each day which is not a Saturday, a Sunday or a day on which banking
institutions in that Place of Payment are authorized or obligated by law to
remain closed.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" or "Company Request" means, respectively, a written
order or request signed in the name of the Company by its Chief Executive
Officer, its President, a Vice President, its General Manager, its Treasurer or
the Person exercising similar authority on behalf of any other obligor with
respect to the Securities, and by an Assistant Treasurer, its Controller, or
Director, Finance of Central and South West Corporation, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York, at which at any particular time its corporate trust business
is administered, which at the date hereof is 101 Barclay Street, New York, NY
10286, Attention: Corporate Trust Administration.
"corporation" means a corporation, association, company, joint-stock
company, limited liability company or business trust.
"default" for purposes of Section 601 of this Indenture means an
"Event of Default" as specified in Section 501 hereof, and for purposes of
Section 310(b) of the Trust Indenture Act, "default" means an "Event of Default"
as specified in Section 501 hereof but exclusive of any period of grace or
requirement of notice.
"Defaulted Interest" has the meaning specified in Section 307 hereof.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301 hereof, which must be a clearing agency registered under the
Exchange Act, and, if so provided pursuant to Section 301 hereof with respect to
the Securities of a series, any successor to such Person. If at any time there
is more than one such Person, "Depositary" shall mean, with respect to any
series of Securities, the qualifying entity which has been appointed with
respect to the Securities of that series.
"Discharged" means, with respect to the Securities of any series, the
discharge of the entire Indebtedness represented by, and obligations of the
Company under, the Securities of such series and in the satisfaction of all the
obligations of the Company under this Indenture relating to the Securities of
such series, except (A) the rights of Holders of the Securities of such series
to receive, from the trust fund described in Section 403 hereof, payment of the
principal of and interest and premium, if any, on the Securities of such series
when such payments are due, (B) the Company's obligations with respect to the
Securities of such series with respect to registration, transfer, exchange and
maintenance of a Place of Payment and (C) the rights, powers, trusts, duties,
protections and immunities of the Trustee under this Indenture.
"Event of Default" has the meaning specified in Section 501 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means a Security evidencing all or part of a series
of Securities, issued to the Depositary for such series or its nominee and
registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person (without
duplication), (a) any liability of such Person (1) for borrowed money or under
any reimbursement obligation relating to a letter of credit, financial bond or
similar instrument or agreement, (2) evidenced by a bond, note, debenture or
similar instrument or agreement (including a purchase money obligation) given in
connection with the acquisition of any business, properties or assets of any
kind (other than a trade payable or a current liability arising in the ordinary
course of business or a performance bond or similar obligation), (3) for the
payment of money relating to any obligations under any capital lease of real or
personal property or (4) for purposes of Section 1007, under any agreement or
instrument in respect of an interest rate or currency swap, exchange or hedging
transaction or other financial derivatives transaction; (b) any liability of
others described in the preceding clause (a) that the Person has guaranteed or
that is otherwise its legal liability to the extent of 20% of the amount of
Indebtedness so guaranteed or that is otherwise its legal liability until such
time as the guarantor shall be obligated to make any payment in respect of such
guaranty or legal liability; and (c) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of the types referred
to in clauses (a) and (b) above. For the purpose of determining any particular
amount of Indebtedness under this definition, guarantees of (or obligations with
respect to letters of credit or financial bonds supporting) Indebtedness
otherwise included in the determination of such amount shall not be included.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and includes the terms of particular series of Securities established as
contemplated by Section 301 hereof; provided, however, that if at any time more
than one Person is acting as Trustee under this instrument due to the
appointment of one or more separate Trustees for any one or more separate series
of Securities pursuant to Section 610, "Indenture" shall mean, with respect to
such series of Securities for which any such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security" means any Security as to which the amount of
payments of principal, premium, if any, and/or interest, if any, due thereon is
determined with reference to the rate of exchange between the currency or
currency unit in which the Security is denominated and any other specified
currency or currency unit, to the relationship between two or more currencies or
currency units, to the price of one or more specified securities or commodities,
to one or more securities or commodities exchange indices or other indices or by
other similar methods or formulas, all as specified in accordance with Section
301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Maturity", when used with respect to any Security, means the date on
which the principal or an installment of principal of such Security 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 total of all assets (including
revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise) appearing on a balance sheet of the Company and its
Subsidiaries, net of applicable reserves and deductions, but excluding goodwill,
trade names, trademarks, patents, unamortized debt discount and all other like
intangible assets (which term shall not be construed to include such
revaluations), less the aggregate of the current liabilities of the Company and
its Subsidiaries appearing on such balance sheet.
"Officers' Certificate" means a certificate signed by the Company's
Chief Executive Officer, its President, a Vice President, its General Manager,
its Treasurer or the Person exercising similar authority on behalf of any other
obligor with respect to the Securities and by an Assistant Treasurer, its
Controller, or Director, Finance of Central and South West Corporation, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or regular counsel for the Company, or may be other counsel
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502
hereof.
"Outstanding", when used with respect to Securities of any series,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or U.S. Governmental Obligations (to the extent provided
in Article Four) 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 acts as
its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306
hereof or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (a) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502
hereof, (b) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (c) the principal amount
of a Security 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
301, of the principal amount of such Security (or, in the case of a Security
described in clause (a) or (b) above, of the amount determined as provided in
such clause), and (d) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that in determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned as
described in (d) above which have been pledged in good faith may be regarded as
Outstanding if the pledgee certifies to the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest (or formula for determining the rate or
rates of interest), if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on the Securities of that series are payable as specified
in or as contemplated by Section 301 hereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 hereof in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301 hereof.
"Repayment Price", when used with respect to any Security to be
repaid at the option of the Holder, means the price specified in such Security
or pursuant to this Indenture at which it is to be repaid pursuant to such
Security.
"Responsible Officer", when used with respect to the Trustee, means
any Vice President or any officer of the Trustee, which in each case is assigned
to its Corporate Trust Department, and also means, with respect to a particular
corporate trust matter, any other trust officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and more particularly means any Security authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Security" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean any
Security authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305 hereof.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307 hereof.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal or installment of
principal of such Security or interest is due and payable.
"Subsidiary" means, with respect to any Person, another Person, an
amount of the voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its board of
directors or other governing body (or, if there are not such voting interests,
50% or more of the equity interest of which) that is owned directly or
indirectly by such first Person.
"Tranche" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount, date of
issuance and/or interest rate.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905 hereof.
"U.S. Government Obligations" means (i) direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed by the United States, and (ii) bonds, debentures, notes or other
evidences of indebtedness issued by any of the following federal agencies:
Federal Bank for Cooperatives, Federal National Mortgage Association;
Export-Import Banks of the United States; Federal Land Banks; Federal
Intermediate Credit Banks; Federal Home Loan Banks, the Government National
Mortgage Association and the Federal Home Loan Mortgage Association; and shall
also include in each case a depository receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of a holder of a depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president or assistant vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president' or "assistant vice president".
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee (a) an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and (b) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601 hereof) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, unless otherwise
established in or pursuant to a Board Resolution or set forth or determined in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, pursuant to Section 301 hereof, a Holder, including a Depositary that is
a Holder of a Global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made,
given or taken by Holders, and a Depositary that is a Holder of a Global
Security may provide its proxy or proxies to the beneficial owners of interests
in any such Global Security through such Depositary's standing instructions and
customary practices.
(b) The fact and date of the execution by any Person of any such
instrument, writing or proxy 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, writing or proxy acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument, writing or proxy, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to make
any request or demand, or give any authorization, direction, notice, consent or
waiver, or take any other action, provided or permitted by this Indenture to be
made, given or taken by Holders of Securities of such series.
With regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to take
relevant action, whether or not such Holders remain Holders after such record
date. With regard to any action that may be taken hereunder only by Holders of a
requisite principal amount of Outstanding Securities of any series (or their
duly appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which no
such action purported to be taken by any Holder shall be effective hereunder
unless taken on or prior to such expiration date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents). On or prior to any expiration date set
pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such expiration date to any later date. Nothing in this paragraph
shall prevent any Holder (or any duly appointed agent thereof) from taking, at
any time, any action contrary to or different from, any action previously taken,
or purported to have been taken, hereunder by such Holder, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not
set a record date for, and the provisions of this paragraph shall not apply with
respect to, any action to be taken by Holders pursuant to Section 501, 502 or
512 hereof.
Upon receipt by a Responsible Officer of the Trustee of actual notice
of any default described in Section 501 hereof, any declaration of acceleration,
or any rescission and annulment of any such declaration, pursuant to Section 502
hereof or of any direction in accordance with Section 512 hereof, a record date
shall automatically and without any other action by any Person be set for the
purpose of determining the Holders of Outstanding Securities of the series
entitled to join in such notice, declaration, or rescission and annulment, or
direction, as the case may be, which record date shall be the close of business
on the day the Trustee actually receives such notice, declaration, rescission
and annulment or direction, as the case may be. The Holders of Outstanding
Securities of such series on such record date (or their duly appointed agent),
and only such Persons, shall be entitled to join in such notice, declaration,
rescission and annulment, or direction, as the case may be, whether or not such
Holders remain Holders after such record date; provided that, unless such
notice, declaration, rescission and annulment, or direction, as the case may be,
shall have become effective by virtue of Holders of the requisite principal
amount of Outstanding Securities of such series on such record date (or their
duly appointed agents) having joined therein on or prior to the 90th day after
such record date, such notice of default, declaration, or rescission and
annulment or direction given or made by the Holders, as the case may be, shall
automatically and without any action by any Person be canceled and of no further
effect. Nothing in this paragraph shall prevent a Holder (or a duly appointed
agent thereof) from giving, before or after the expiration of such 90-day
period, a notice of default, a declaration of acceleration, a rescission and
annulment of a declaration of acceleration or a direction in accordance with
Section 512 hereof, contrary to or different from, or, after the expiration of
such period, identical to, a previously given notice, declaration, rescission
and annulment, or direction, as the case may be, that has been canceled pursuant
to the proviso to the preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this paragraph. SECTION 105. Notices,
Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made at the direction of the Company in a
manner reasonably calculated, to the extent practicable under the circumstances,
to provide prompt notice and shall constitute a sufficient notification for
every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, such provision
of the Trust Indenture Act shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 108. Effect of Headings, Table of Contents, Etc.
------------------------------------------
The Article and Section headings herein, the Table of Contents and
the Reconciliation and tie between the Trust Indenture Act of 1939 and this
Indenture are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York without regard to
principals of conflict of law except Section 5-1401 of the New York General
Obligations Law.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or date of repayment at the option of a Holder of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest, if any,
or principal (and premium, if any) need not be made on such date at such Place
of Payment, 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,
Redemption Date, at the Stated Maturity or on the date of repayment, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, Stated Maturity or date of repayment, as the case
may be.
SECTION 114. No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of or any premium or
interest on any Security or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company, contained in this Indenture or in any supplemental indenture, or in
any Security, or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator, organizer, member, limited
partner, stockholder, officer or director, as such, past, present or future, of
the Company or any successor Person, either directly or through the Company or
any successor Person, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Securities 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 as may, consistently herewith, be determined by the
officer or officers executing such Securities, as evidenced by the officer's or
officers' execution of the Securities. If the form of Securities 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 an authorized officer of
the Company, and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 hereof for the authentication and
delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officer or officers executing such Securities, as evidenced by
the officer's or officers' execution of such Securities.
SECTION 202. Form of Face of Security.
------------------------
[If the Security is to be a Global Security, insert - This Security
is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee of a Depositary. This
Security is exchangeable for Securities registered in the name of a Person other
than the Depositary or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer of
this Security as a whole by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Global Security is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any definitive Security is issued in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
SOUTHWESTERN ELECTRIC POWER COMPANY
[Title of the Security]
CUSIP No. __________ $__________
No. ________________
SOUTHWESTERN ELECTRIC POWER COMPANY, a corporation duly organized and
existing under the laws of the State of Delaware (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 Security 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 per annum provided in the title hereof, until the
principal hereof is paid or made available for payment [If applicable, insert -
, and, subject to the terms of the Indenture, at the rate per annum provided in
the title hereof on any overdue principal and premium and (to the extent that
the payment of such interest shall be legally enforceable) on any overdue
installment of interest]. 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 Security (or one or more Predecessor
Securities) 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 Security (or one or more Predecessor
Securities) 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 Securities 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 Securities 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.]
[If the Security is not to bear interest prior to Maturity, insert -
The principal of this Security 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 of this Security shall bear
interest at the rate of [yield to maturity]% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of [yield to maturity]% per annum
(to the extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such demand for payment to the date payment
of such interest has been made or duly provided for, and such interest shall
also be payable on demand.]
Payment of the principal of (and premium, if any) and interest[, if
any,] on this Security 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 the payment of
public and private debts - or state other currency] [If this Security is not a
Global Security, 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 Security Register] [If this
Security is a Global Security, insert applicable manner of payment].
Reference is hereby made to the further provisions of this Security
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 Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, Southwestern Electric Power Company has caused
this instrument to be duly executed under its corporate seal.
Dated:
SOUTHWESTERN ELECTRIC POWER COMPANY
By______________________________________
[Name]
[Title]
[If more than one
officer is to sign -
By______________________________________
[Name]
[Title]]
SECTION 203. Form of Reverse of Security.
---------------------------
SOUTHWESTERN ELECTRIC POWER COMPANY
[Title of the Security]
This Security is one of a duly authorized issue of securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture, dated as of February 25, 2000, as amended and supplemented from
time to time (the "Indenture"), between the Company and The Bank of New York, a
New York banking corporation, as Trustee (the "Trustee", which term includes any
successor trustee under the Indenture), as to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$________].
[If applicable, insert - This Security is not subject to redemption
prior to maturity.] [If applicable, insert - The Securities of this series are
subject to redemption upon not less than 30 or more than 60 days' notice by mail
to the Holders of such Securities at their addresses in the Security Register
for such series, [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 [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 [on or before _____________, ___%, and if redeemed]
during the 12-month period beginning ___________, of the years indicated:
Redemption
Year Price Year Redemption Price
- -------------------------------------------------------------------
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 and unpaid
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
Securities, or one or more Predecessor Securities, 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 Securities of this series as
contemplated by [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.]
[The sinking fund for this series provides for the redemption on
_________ in each year beginning with the year ____ and ending with the year
____ of [not less than] __________ [("mandatory sinking fund") and, at the
option of the Company, not more than __________] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made in the order in which they become due.]]
[In the event of redemption of this Security in part only, a new
Security or Securities 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.]
The Indenture contains provisions for defeasance of (a) the entire
Indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security, insert -
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series (the
"Acceleration Amount") may be declared due and payable in the manner and with
the effect provided in the Indenture. In case of a declaration of acceleration
on or before ________, __ or on _____________ in any year, the Acceleration
Amount per ______ principal amount at Stated Maturity of the Securities shall be
equal to the amount set forth in respect of such date below:
Acceleration Amount
per
Date of principal amount at
declaration Stated Maturity
and in case of a declaration of acceleration on any other date, the Acceleration
Amount shall be equal to the Acceleration Amount as of the next preceding date
set forth in the table above, plus accrued original issue discount (computed in
accordance with the method used for calculating the amount of original issue
discount that accrues for Federal income tax purposes) from such next preceding
date to the date of declaration at the yield to maturity. For the purpose of
this computation the yield to maturity is ___%. Upon payment (i) of the
Acceleration Amount so declared due and payable and (ii) of interest on any
overdue principal and overdue 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 interest, if any,
on the Securities 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 Securities 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 Securities at
the time Outstanding of all series to be affected (voting as a class). The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
[If this Security is a Global Security, insert - This Security shall
be exchangeable for Securities registered in the names of Persons other than the
Depositary with respect to such series or its nominee only as provided in this
paragraph. This Security shall be so exchangeable if (x) the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or at any time ceases to be a clearing agency registered as such under
the Exchange Act, (y) the Company executes and delivers to the Trustee an
Officers' Certificate providing that this Security shall be so exchangeable or
(z) there shall have occurred and be continuing an Event of Default with respect
to the Securities of such series. Securities so issued in exchange for this
Security shall be of the same series, having the same interest rate, if any, and
maturity and having the same terms as this Security, in authorized denominations
and in the aggregate having the same principal amount as this Security and
registered in such names as the Depositary for such Global Security shall
direct.]
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of [If this Security is a Global Security,
insert - a Security of the series of which this Security is a part] [If this
Security is not a Global Security, insert - this Security] is registrable in the
Security Register, upon surrender of this Security for registration of transfer
at the office or agency of the Company in any place where the principal of (and
premium, if any) and interest, if any, on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities 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 Securities of [If this Security is a Global Security insert - the
series of which this Security is a part] [If this Security is not a Global
Security, insert - 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,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities 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 Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York without regard to principals of conflict of
law except Section 5-1401 of the New York General Obligations Law.
All terms used in this Security which are defined in the Indenture
shall have the meanings ascribed to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's Certificate of Authentication shall be in the following
form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Dated: _______________ The Bank of New York
________________________,
as Trustee
By_________________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. All Securities of
each series under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Stated Maturity of the Securities of such series.
The Securities may be issued in one or more series. Each series of
Securities shall be created either by or pursuant to a Board Resolution or by or
pursuant to an indenture supplemental hereto. The Securities of each such series
may bear such date or dates, be payable at such place or places, have such
Stated Maturity or Maturities, bear interest at such rate or rates (which may be
fixed or floating), from such date or dates, payable in such installments and on
such dates and at such place or places to the Holders of Securities registered
as such on the related Regular Record Dates, or may bear no interest, and may be
redeemable or repayable at such Redemption Price or Prices or Repayment Price or
Prices, as the case may be, whether at the option of the Holder or otherwise,
and upon such terms, all as shall be provided for in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating that series.
There may also be established in or pursuant to a Board Resolution and, subject
to Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or pursuant to a supplemental indenture prior to the issuance of
Securities of each such series, provision for:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906, or 1107
hereof and except for any Securities which, pursuant to Section 303
hereof, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person or Persons (without specific identification) to whom
any interest on the Securities of the series, or any Tranche thereof,
shall be payable, if other than the Person in whose name the Security (or
one or more Predecessor Securities) is 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 Securities of the
series, or any Tranche thereof, is payable or any formulary 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 Securities of the series, or any
Tranche thereof, 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 Securities 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 formulary 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, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date
and the basis for computation of interest, if other than as provided in
Section 310;
(6) the place or places, if any, in addition to or in place of the
office or agency of the Company in The City of New York, State of New York
or the principal office or place of business of the Trustee or its
successors in trust under the Indenture, which, at the date hereof, is
located at 101 Barclay Street, New York, NY 10286, Attention: Corporate
Trust Administration, at which or methods by which (i) the principal of
and premium, if any, and interest, if any, on Securities of such series,
or any Tranche thereof, shall be payable, (ii) registration of transfer of
Securities of such series, or any Tranche thereof, may be effected, (iii)
exchanges of Securities of such series, or any Tranche thereof, may be
effected and (iv) notices and demands to or upon the Company in respect of
the Securities of such series, or any Tranche thereof, and this Indenture
may be served;
(7) the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions upon
which Securities of the series, or any Tranche thereof, may be redeemed,
in whole or in part, at the option of the Company and any restrictions on
such redemptions, including but not limited to a restriction on a partial
redemption by the Company of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities from any national
exchange;
(8) the obligation or obligations, if any, of the Company to redeem,
repay or purchase Securities of the series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory redemption provisions or
at the option of a Holder thereof, and the period or periods within which,
or the date or dates on which, the price or prices at which and the terms
and conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of Section 1104 in the case of
mandatory redemption or redemption at the option of the Holder;
(9) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currencies, in
which payment of the principal of (and premium, if any) and interest, if
any, on the Securities, or any Tranche thereof, of the series shall be
payable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 hereof;
(11) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series, or any
Tranche thereof, shall be issuable;
(12) if the principal of (and premium, if any) or interest, if any,
on the Securities of the series, or any Tranche thereof, are to be
payable, at the election of the Company or a Holder thereof, in a coin or
currency other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of the series, or any Tranche
thereof, may be determined with reference to an index or other fact or
event ascertainable outside this Indenture, the manner in which such
amounts shall be determined, to the extent not established pursuant to
subsection (5) of this paragraph;
(14) if the principal of (and premium, if any) or interest on the
Securities of the series, or any Tranche thereof, are to be payable, or
are to be payable at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or
other property, or the formulary or other method or other means by which
such amount shall be determined, and the period or periods within which,
and the terms and conditions upon which, any such election may be made;
(15) any Events of Default, in addition to those specified in Section
501, with respect to the Securities of such series, and any covenants of
the Company for the benefit of the Holders of the Securities of such
series, or any Tranche thereof, in addition to those set forth in Article
Ten;
(16) if the Securities of the series, or any Tranche thereof, shall
be issued in whole or in part in the form of one or more Global
Securities, (i) whether beneficial owners of interests in any such Global
Security may exchange such interests for Securities of such series of like
tenor and of authorized form and denomination and the circumstances under
which any such changes may occur, if other than in the manner provided in
Section 305 hereof, (ii) the Depositary for such Global Security or
Securities and (iii) any and all other matters incidental to such
Securities;
(17) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any other
Person;
(18) if other than as set forth in Article Four, provisions for the
satisfaction and discharge of this Indenture, with respect to the
Securities of the series, or any Tranche thereof;
(19) if the Securities of the series, or any Tranche
thereof, do not bear interest, the applicable dates for
purposes of Section 701;
(20) if the Securities of the series, or any Tranche thereof, are
issuable as Indexed Securities, the manner in which the amount of payments
of principal, premium, if any, and interest, if any, on that series will
be determined;
(21) to the extent not established pursuant to subsection (16) of
this paragraph, any limitations on the rights of the Holders of the
Securities of such series, or any Tranche thereof, to transfer or exchange
such Securities or to obtain the registration of transfer thereof; and if
a service charge will be made for the registration of transfer or exchange
of Securities of such series, or any Tranche thereof, the amount or terms
thereof;
(22) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any
Tranche thereof;
(23) any collateral security, assurance or guarantee
for the Securities of such series; and
(24) any other terms of the series, or any Tranche thereof, (which
terms shall not be inconsistent with the provisions of this Indenture),
including, without limitation, any terms required for or appropriate to
(i) establishing one or more series of medium-term notes to be issued in a
Periodic Offering or (ii) providing for the remarketing of the Securities
of such series.
All Securities of any one series (other than Securities offered in a
Periodic Offering) 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 set forth in the Officers' Certificate referred to above
or in any such indenture supplemental hereto.
If any of the terms of the series, including the form of Security of
such 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 or other authorized officer of the Company, and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 hereof for the authentication and delivery of such
series of Securities.
With respect to Securities of a series offered in a Periodic
Offering, such Board Resolution and Officers' Certificate or supplemental
indenture may provide general terms or parameters for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with other procedures
specified in a Company Order as contemplated by the third paragraph of Section
303.
SECTION 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons, except as otherwise expressly provided in a supplemental
indenture hereto, in such denominations as shall be specified as contemplated by
Section 301 hereof. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chief Executive Officer, its President, a Vice President, its General Manager,
its Treasurer or the Person exercising similar authority on behalf of any other
obligor on the Securities, under its corporate seal (if any), reproduced
thereon, and which need not be attested. The Securities of any series shall be
executed by such additional officer, if any, as shall be specified pursuant to
Section 301 hereof. The signature of any of these officers on the Securities may
be manual or facsimile.
Securities bearing the manual or facsimile signature of any
individual who was at any time the proper officer of the Company shall bind the
Company, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of such Securities or did not hold such
office at the date of authentication of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, or, in the case of Securities offered
in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for the specific terms of the
Securities being so offered, together with (i) a Company Order for the
authentication and delivery of such Securities, (ii) an Officers' Certificate
stating that (x) the Company is not, and upon the authentication by the Trustee
of the series of Securities, will not be in default under any of the terms or
covenants contained in the Indenture, and (y) all conditions that must be met by
the Company to issue Securities under the Indenture have been met, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301 hereof, in authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601 hereof) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201 hereof, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301 hereof, that such
terms have been established in conformity with the provisions of this
Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or other
similar laws relating to or affecting the rights of creditors generally
and except as the enforceability thereof is subject to the application of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (i) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (ii) concepts of materiality, reasonableness,
good faith and fair dealing;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of Securities of such
series, and in such case the opinions described in Clauses (b) and (c) above may
state, respectively, that:
(i) if the terms of such Securities are to be established pursuant to
a Company Order or pursuant to such procedures as may be specified from
time to time by a Company Order, all as contemplated by a Board Resolution
or action taken pursuant thereto, such terms will have been duly
authorized by the Company and established in conformity with the
provisions of this Indenture; and
(ii) that such Securities, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee in accordance
with this Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture, and issued and delivered by the Company
and paid for, all in accordance with any agreement of the Company relating
to the offering, issuance and sale of such Securities, will be duly issued
under this Indenture and will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other similar laws
of general applicability relating to or affecting generally the
enforcement of creditors' rights, to general equitable principles and to
such other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities and any coupons.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
protections or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 hereof and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution,
the Officers' Certificate, or an indenture supplemental hereto otherwise
required pursuant to Section 301 hereof or the Company Order, the Officers'
Certificate and the Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the time of
authentication upon original issuance of the first Security of such series to be
issued. If all of the Securities of a series are not authenticated and issued at
one time, for each issuance of Securities after the initial issuance of
Securities, the Company shall be required only to deliver to the Trustee the
Security executed by the Company together with a Company Order to the Trustee to
authenticate such Security and to deliver such Security in accordance with the
instructions specified by such Company Order. Any such Company Order shall
constitute a representation and warranty by the Company that the statements made
in the Officers' Certificate delivered to the Trustee prior to the
authentication and issuance of the first Security of such series are true and
correct on the date thereof as if made on and as of the date thereof.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 hereof together with a written statement
(which need not comply with Section 102 hereof and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officer or officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series and of like tenor of
authorized denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. 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 and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, any Security or Securities of any
series, other than a Global Security, may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Sections 304, 906 or 1107 hereof not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 hereof and
ending at the close of business on the day of such mailing, or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of this Section 305 are, with respect to any Global
Security, subject to Section 311 hereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 306
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security 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 Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, 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 Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such 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 Security 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 mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such 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 Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, 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 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder of a Security as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
307 hereof) interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary. All such payments so made to any such Holder, or upon
such Holder's order, shall be valid, and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depositary and such holders
of beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depositary as holder of any Security.
SECTION 309. Cancellation.
------------
All Securities 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 canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section 309, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be disposed of as directed by
a Company Order, provided that the Trustee shall not be required to destroy
canceled Securities.
SECTION 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 hereof
for Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Global Securities.
-----------------
If the Company establishes pursuant to Section 301 hereof that the
Securities of a particular series are to be issued in the form of a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 303 hereof, authenticate and deliver, a Global Security or
Securities which (i) shall represent, and shall be denominated in an aggregate
amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable for
Securities registered in the name of a person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture,
and no transfer of this Security (other than a transfer of this Security
as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Global Security is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any definitive Security
is issued in the name of [Cede & Co.] or in such other name as is
requested by an authorized representative of the Depositary (and any
payment is made to [Cede & Co.] or to such other entity as is requested by
an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in
as much as the registered owner hereof, [Cede & Co.], has an interest
herein."
Notwithstanding the provisions of Section 305 hereof, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 305 hereof, only to another nominee of the Depositary
for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.
If (i) at any time the Depositary for a series of Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be or (ii) there shall have
occurred and be continuing after any applicable grace periods an Event of
Default with respect to the Securities for a series, then in each such case,
this Section 311 shall no longer be applicable to the Securities of such series
and the Company will execute, and subject to Section 305 hereof, the Trustee
will authenticate and deliver Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Securities of such series in
exchange for such Global Securities. In addition, the Company may at any time
determine that the Securities of any series shall no longer be represented by
Global Securities and that the provisions of this Section 311 shall no longer
apply to the Securities of such series. In such event the Company will execute
and subject to Section 305 hereof, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Securities of such series in exchange for such
Global Securities. Upon the exchange of the Global Securities for such
Securities in definitive registered form without coupons, in authorized
denominations, the Global Securities shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Securities pursuant to this Section 311, shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to the instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver Securities to the Depositary for delivery to
the persons in whose names such Securities are so registered.
SECTION 312. Periodic Offering of Securities.
-------------------------------
Notwithstanding any contrary provision herein, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary
for the Company to deliver to the Trustee an Officers' Certificate, Board
Resolution, supplemental indenture, Opinion of Counsel or Company Request
otherwise required pursuant to Sections 202, 301 and 303 at or prior to the time
of authentication of each Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first Security of such series to be issued; provided
that any subsequent request by the Company to the Trustee to authenticate
Securities of such series upon original issuance shall constitute a
representation and warranty by the Company and its counsel that as of the date
of such request, the statements made in the Officers' Certificate and opinions
made in the Opinion of Counsel delivered pursuant to Section 102 and 303,
respectively, shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board Resolution
delivered by the Company to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Securities which are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original
issue from time to time upon the written order of a person or persons designated
in such Officers' Certificate, supplemental indenture or Board Resolution (any
such telephonic instructions to be confirmed promptly in writing by such person
or persons) and that such person or persons are authorized to determine,
consistent with such Officers' Certificate, supplemental indenture or Board
Resolution, such terms and conditions of said Securities as are specified in
such Officers' Certificate, supplemental indenture or Board Resolution.
SECTION 313. CUSIP Numbers.
-------------
The Company in issuing the Securities 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 Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. 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 Securities 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 Securities of that series theretofore
authenticated and delivered (other than (x) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 306 hereof and (y) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003 hereof) have been delivered to the
Trustee for cancellation; or
(B) all such Securities of that series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year,
(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, or
(iv) are deemed paid and discharged pursuant to
Section 403 hereof, as applicable,
and the Company, in the case of (i), (ii), (iii) or (iv) of clause (B)
above, has deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount of (a) money in the currency or
units of currency in which such Securities are payable, or (b) in the case
of (ii) or (iii) of clause (B) above and (except as provided in an
indenture supplemental hereto) if no Securities of the affected series
Outstanding are subject to repurchase at the option of Holders (I) U.S.
Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide not later
than one day before the Stated Maturity or Redemption Date, as the case
may be, money in an amount, or (II) a combination of money or U.S.
Government Obligations as provided in (I) above, in each case, sufficient
to pay and discharge the entire Indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest, if any, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, 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 607 hereof, the
obligations of the Trustee to any Authenticating Agent under Section 614 hereof
and, if money or U.S. Government Obligations shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section 401 or if money
or U.S. Government Obligations shall have been deposited with or received by the
Trustee pursuant to Section 403 hereof, the obligations of the Trustee under
Section 402 hereof and the last paragraph of Section 1003 hereof shall survive.
SECTION 402. Application of Trust Money.
--------------------------
(a) Subject to the provisions of the last paragraph of Section 1003
hereof, all money or U.S. Government Obligations deposited with the Trustee
pursuant to Sections 401, 403 or 1009 hereof and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the Trustee
pursuant to Sections 401, 403 or 1009 hereof, shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this Indenture,
to the payment, to the persons entitled thereto, of the principal (and premium,
if any) and interest, if any, for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Sections 401, 403 or 1009 hereof.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Sections 401, 403 or 1009 hereof or the
interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in Sections 401, 403 or 1009 hereof which, in the opinion of a
nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited for
the purpose for which such U.S. Government Obligations or money was deposited or
received. This provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations held under this Indenture.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities
-----------------------------------------------------
of any Series.
- -------------
The Company shall be deemed to have paid and Discharged the entire
Indebtedness on all the Outstanding Securities of any series on the 91st day
after the date of the deposit referred to in subparagraph (1) hereof, and the
provisions of this Indenture, as it relates to such Outstanding Securities of
such series, shall no longer be in effect (and the Trustee, at the expense of
the Company, shall at Company Request execute proper instruments acknowledging
the same), except as to:
(a) the rights of Holders of Securities of such series to receive,
from the trust funds described in subparagraph (1) hereof, (i) payment of
the principal of (and premium, if any) and each installment of principal
of (and premium, if any) or interest, if any, on the Outstanding
Securities of such series on the Stated Maturity of such principal or
installment of principal or interest or to and including the Redemption
Date irrevocably designated by the Company pursuant to subparagraph (5)
hereof and (ii) the benefit of any mandatory sinking fund payments
applicable to the Securities of such series on the day of which such
payments are due and payable in accordance with the terms of this
Indenture and the Securities of such series;
(b) the Company's obligations with respect to such Securities of such
series under Sections 305, 306, 1002 and 1003 hereof and if the Company
shall have irrevocably designated a Redemption Date pursuant to
subparagraph (5) hereof, Sections 1101, 1104 and 1106 hereof as they apply
to such Redemption Date;
(c) the Company's obligations with respect to the
Trustee under Section 607 hereof; and
(d) the rights, powers, trust and immunities of the Trustee hereunder
and the duties of the Trustee under Section 402 hereof and, if the Company
shall have irrevocably designated a Redemption Date pursuant to
subparagraph (5) hereof, Article Eleven and the duty of the Trustee to
authenticate Securities of such series on registration of transfer or
exchange;
provided that, the following conditions shall have been satisfied:
(1) the Company has deposited or caused to be irrevocably deposited
(except as provided in Section 402(c) hereof and the last paragraph of
Section 1003 hereof) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of such series, (i) money, in the
currency or units of currency in which such Securities are payable, in an
amount, or (ii) (except as provided in a supplemental indenture or Board
Resolution with respect to such series) if Securities of such series are
not subject to repurchase at the option of Holders, (A) U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later than one day
before the due date of any payment referred to in clause (x) or (y) of
this subparagraph (1) money in an amount or (B) a combination thereof, in
each case sufficient, in the report of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which the Trustee shall be instructed to apply to pay and discharge, (x)
the principal of (and premium, if any) and each installment of principal
(and premium, if any) and interest, if any, on the Outstanding Securities
of such series on the Stated Maturity of such principal or installment of
principal or interest or to and including the Redemption Date irrevocably
designated by the Company pursuant to subparagraph (5) hereof and (y) any
mandatory sinking fund payments applicable to the Securities of such
series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of the Securities of such series;
(2) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that such provision would not cause any Outstanding Securities
of such series then listed on any national securities exchange to be
delisted as a result thereof;
(3) no Event of Default or event which with notice or lapse of time
would become an Event of Default (including by reason of such deposit)
with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit or during the period ending on the
91st day after such date;
(4) the Company has delivered to the Trustee an unqualified opinion,
in form and substance reasonably acceptable to the Trustee, of independent
counsel of national standing selected by the Company and satisfactory to
the Trustee to the effect that (i) Holders of the Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of the deposit, defeasance and discharge, which opinion shall be based on
a change in law or a ruling by the U.S. Internal Revenue Service and (ii)
the defeasance trust is not, or is registered as, an investment company
under the Investment Company Act of 1940;
(5) if the Company has deposited or caused to be deposited money or
U.S. Government Obligations to pay or discharge the principal of (and
premium, if any) and interest, if any, on the Outstanding Securities of a
series to and including a Redemption Date on which all of the Outstanding
Securities of such series are to be redeemed, such Redemption Date shall
be irrevocably designated by a Board Resolution delivered to the Trustee
on or prior to the date of deposit of such money or U.S. Government
Obligations, and such Board Resolution shall be accompanied by an
irrevocable Company Request that the Trustee give notice of such
redemption in the name and at the expense of the Company not less than 30
nor more than 60 days prior to such Redemption Date in accordance with
Section 1104 hereof; and
(6) 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 the
Securities have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
affected 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) unless such event is either inapplicable to a particular series (to the
extent expressly provided in the form of Security for such series) or it is
specifically deleted or modified in the supplemental indenture creating such
series of Securities or in the form of Security for such series:
(a) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity, and continuance of such
default for a period of three days; or
(c) default in the payment of any sinking fund installment, when and
as due by the terms of a Security of that series, and continuance of such
default for a period of three days; or
(d) default in the performance, or breach, of any covenant or
warranty or obligation 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 501 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of any
series of Securities other than that series), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 33% in aggregate
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) 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 or other similar law or (B) a decree or order 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
(f) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency 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 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 relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the taking of corporate action by the Company
in furtherance of any such action; or
(g) any other Event of Default provided in the supplemental indenture
or provided in or pursuant to the Board Resolution under which such series
of Securities is issued or in the form of Security for such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at
the time Outstanding described in paragraph (a), (b), (c), (d) or (g) of Section
501 hereof occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 33% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable upon the date which is 10 days
after the date of such notice.
If an Event of Default described in paragraph (e) or (f) of Section
501 hereof occurs and is continuing, then and in every such case, the principal
amount (or, if any Securities are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms thereof) of all
the Securities shall, without any notice to the Company or any other act on the
part of the Trustee or any Holder of the Securities, become and be immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest, if any, on all
Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon any overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of and accrued interest on
Securities of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513
hereof.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement
-----------------------------------------------------
by Trustee.
- ----------
The Company covenants that if (a) default is made in the payment of
any interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or (b) default is made in the payment
of the principal of (or premium, if any, on) any Security at the Maturity
thereof, then the Company will, upon written demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest, if
any, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If any Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights.
The Trustee shall not be required to take notice or be deemed to have
notice of any Event of Default other than pursuant to paragraphs (a), (b) or (c)
of Section 501 of this Indenture, unless a Responsible Officer of the Trustee
shall be specifically notified in writing of such default by the Company, or by
the Holders of a majority in aggregate principal amount of Outstanding
Securities.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and any other amounts due the
Trustee under Section 607 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
-------------------------------------------------
Securities.
- ----------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order with respect to the Securities of the series in
respect of which such money was collected at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607 hereof;
SECOND: In case the principal and premium, if any, of the Securities
of such series in respect of which moneys have been collected shall not
have become and be then due and payable, to the payment of interest, if
any, on the Securities of such series in default in the order of the
maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee and to the
extent permitted by law) upon the overdue installments of interest at the
rate prescribed therefor in such Securities, such payments to be made
ratably to the Persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal or premium, if any, of the Securities of
such series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series for
principal and premium, if any, and interest, if any, with interest upon
the overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
law) upon overdue installments of interest at the rate prescribed therefor
in the Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and any
premium and interest, without preference or priority of principal over
interest, or of interest over principal or premium, or of any installment
of interest over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to the
aggregate of such principal and any premium and accrued and unpaid
interest; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to a Responsible
Officer of the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 33% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to it 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 principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
-----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307 hereof) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption or
repayment at the option of the Holder, on the Redemption Date or the Repayment
Date, respectively) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306 hereof, 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 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to Holders not taking part in such action.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken 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 514 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, respectively).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of a default with
respect to the Securities of any series,
(1) the Trustee undertakes to perform 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
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 examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case a default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
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
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section 601;
(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 Securities of any series, determined as provided in
Section 512 hereof, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities 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 601. The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and it shall not be answerable for
other than its own negligent action, its own negligent failure to act or its own
willful misconduct.
SECTION 602. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series or in the payment of
any sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any default of the character
specified in Section 501(d) hereof with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 602, 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 Securities of such series.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601 hereof:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of Indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
deems 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,
conclusively rely upon an Officers' Certificate;
(d) 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;
(e) the Trustee shall be under no obligation to expend or risk its
own funds or to exercise, at the request or direction of any of the Holders, any
of the rights or powers vested in it by this Indenture pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled upon reasonable
request to examine the books, records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(i) the Trustee shall not be deemed to have notice of any default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of
--------------------------------------------
Securities.
- ----------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and 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 Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof. The Trustee
shall not be responsible for doing or performing any thing or act which the
Company shall have covenanted to do or perform, or for any compliance with any
covenant by the Company, nor shall the Trustee be bound to ascertain or inquire
as to the performance of any covenant, condition or agreement by the Company,
but it may require full information and advice in regard to any of the
foregoing.
SECTION 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613 hereof, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. 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 any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such compensation as is
agreed upon in writing, or, if no such agreement exists, reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust), and shall have a lien therefor on any
and all funds at any time held by it under this Indenture for such
compensation;
(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, which compensation, expenses
and disbursements shall be set forth in sufficient detail), and shall have
a lien therefor on any and all funds at any time held by it under this
Indenture for such expenses and disbursements, except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
SECTION 608. Conflicting Interests.
---------------------
The Trustee for the Securities of any series issued hereunder shall
be subject to the provisions of Section 310(b) of the Trust Indenture Act during
the period of time provided for therein. In determining whether the Trustee has
a conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded for
purposes of the conflicting interest provisions of such Section 310(b) the
Securities of every other series issued under this Indenture. Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under the Trust Indenture Act and which shall have a
combined capital and surplus of at least $50,000,000. If the Trustee does not
have an office in The City of New York, the Trustee may appoint an agent in The
City of New York reasonably acceptable to the Company to conduct any activities
which the Trustee may be required under this Indenture to conduct in The City of
New York. If the Trustee does not have an office in The City of New York or has
not appointed an agent in The City of New York, the Trustee shall be a
participant in The Depository Trust Company and FAST distribution systems. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of a Federal, State, or District of Columbia
supervising or examining authority, then for the purposes of this Section 609,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 609, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor
--------------------------------------------------
Trustee.
- -------
(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 611 hereof.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 hereof
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 608 hereof with respect to
any series of Securities after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
hereof 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, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514 hereof,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees. If the
instrument of acceptance by a successor Trustee required by Section 611 hereof
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611 hereof. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611 hereof, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611 hereof, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and 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 Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section 611, 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 612. Merger, Conversion, Consolidation or Succession to
---------------------------------------------------
Business.
- --------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
(a) Subject to Subsection (b) of this Section 613, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (c) of this Section 613, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Securities and the holders of other indenture securities, as
defined in Subsection (c) of this Section 613:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default;
and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section 613, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim
as provided in paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the Indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section 613 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders
at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depository, or other similar
capacity;
(4) an Indebtedness created as a result of services rendered or
premises rented; or an Indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c)
of this Section 613;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection (c) of this Section 613.
(c) For the purposes of this Section 613 only:
(1) the term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor (as defined in the Trust Indenture
Act) outstanding under any other indenture (i) under which the
Trustee is also trustee, (ii) which contains provisions substantially
similar to the provisions of this Section 613, and (iii) under which
a default exists at the time of the apportionment of the funds and
property held in such special account;
(3) 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;
(4) 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;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Code
or Title 11 of the United States Code.
SECTION 614. Authenticating Agents.
---------------------
From time to time the Company, in its sole discretion, may appoint
one or more Authenticating Agents with respect to one or more series of
Securities with power to act on the Trustee's behalf and subject to its
direction in the authentication and delivery of Securities of such series or in
connection with transfers and exchanges under Sections 304, 305, 306, and 1107
hereof as fully to all intents and purposes as though the Authenticating Agent
had been expressly authorized by those Sections of this Indenture to
authenticate and deliver Securities of such series. For all purposes of this
Indenture, the authentication and delivery of Securities by an Authenticating
Agent pursuant to this Section 614 shall be deemed to be authentication and
delivery of such Securities "by the Trustee". Each such Authenticating Agent
must at all times be a corporation organized and doing business under the laws
of the United States, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
Federal, State or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 614 the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any corporation into which any Authenticating Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation or to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of the Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section 614, without the
execution or filing of any paper or any further act on the part of the parties
hereto or the Authenticating Agent or such successor corporation.
An Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Company may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Trustee. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 614, the
Company may appoint a successor Authenticating Agent and shall mail notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, as the names and addresses of such
Holders appear on the Security Register. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 614, and the
Trustee shall be entitled to be reimbursed for such payments pursuant to Section
607 hereof.
If an appointment with respect to one or more series of Securities is
made pursuant to this Section 614, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated: _______________
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As Trustee
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As Authenticating Agent
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Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
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Holders.
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The Company will furnish or cause to be furnished to the Trustee with
respect to the Securities of each series
(a) semi-annually, not later than 15 days after each Regular Record
Date, or, in the case of any series of Securities on which semi-annual
interest is not payable, not more than 15 days after such semi-annual
dates as may be specified by the Trustee, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date or semi-annual date, as the case may be,
and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar for
any series of Securities, no such list shall be required to be furnished with
respect to any such series.
SECTION 702. Preservation of Information; Communications to
-----------------------------------------------
Holders.
- -------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 hereof and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 hereof upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a) hereof, or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a) hereof, and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 702(a) hereof a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b) hereof, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
702(b) hereof.
SECTION 703. Reports by Trustee.
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(a) Within 60 days after the first May 15 which occurs not less than
60 days following the first date of issuance of Securities of any series under
this Indenture and within 60 days after May 15 in every year thereafter, the
Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 with
respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 609
hereof and its qualifications under Section 608 hereof;
(2) the creation of or any material change to a
relationship specified in Section 608 hereof;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other Indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an Indebtedness based upon a creditor
relationship arising in any manner described in Sections 613(b)(2), (3),
(4) or (6) hereof;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of property subject to
the lien of this Indenture, if any (and the consideration therefor, if
any) which it has not previously reported;
(7) any additional issue of Securities which the
Trustee has not previously reported; and
(8) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602 hereof.
(b) The Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report with respect to
(1) the release, or release and substitution, of property subject to the lien of
this Indenture (and the consideration therefor, if any) unless the fair value of
such property, is less than 10% of the principal amount of Securities
outstanding at the time of such release, or release and substitution, and (2)
the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section 703 (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on property or funds
held or collected by it as Trustee and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Securities Outstanding at
such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each national securities
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when any Securities are
listed on any national securities exchange or of any delisting thereof.
SECTION 704. Reports by Company.
------------------
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section 704 as may be required by rules and regulations prescribed
from time to time by the Commission.
Delivery of such reports, information and documents 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 EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
Unless otherwise provided in an indenture supplemental hereto, the
Company shall not consolidate with or merge into any other Person or convey,
sell or otherwise transfer its properties and assets substantially as an
entirety to any Person, unless the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance, sale or
transfer the properties and assets of the Company substantially as an entirety
is a Person (other than a natural person) organized and 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 premium, if any) and interest, if any,
on all the Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed.
SECTION 802. Successor Person to be Substituted.
----------------------------------
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, sale or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
801 hereof, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, sale or transfer 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 the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company 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 Securities;
(2) to add to the covenants of the Company, or to surrender any right
or power herein conferred upon the Company, for the benefit of the Holders
of all or any series of Securities (and if such covenants, or the
surrender of such rights or powers, are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any right
or power herein conferred upon the Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form, or to permit or facilitate the issuance
of extendible or remarketed Securities;
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
as to the Securities of any series created by such supplemental indenture
and Securities of any series subsequently created to which such change or
elimination is made applicable by the subsequent supplemental indenture
creating such series;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301 hereof;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b) hereof;
(9) to provide for any rights of the Holders of
Securities of any series to require the repurchase of
Securities of such series by the Company;
(10) to cure any ambiguity or defect, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture or the Securities or make any other
changes herein or therein, provided such action shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect;
(11) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect
at the date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(12) to modify, alter, amend or supplement this Indenture in any
other respect which is not materially adverse to Holders, which does not
involve a change described in clauses (1), (2) or (3) of Section 902
hereof.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture (voting as one class), by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 hereof, or change any Place of Payment where, or
the coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or Repayment Date, respectively),
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences, or the declaration of
certain defaults hereunder, provided for in this Indenture, or
(3) modify any of the provisions of this Section 902 or Section 513
hereof, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby,
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902, or the deletion of
this proviso, in accordance with the requirements of Sections 611(b) and
901(8) hereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary under this Section 902 that the particular
form of any proposed supplemental indenture be approved by an Act, provided that
the substance of such proposed supplemental indenture shall have been approved.
SECTION 903. 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 601 hereof) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities 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 so
determines, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of the Securities of such series and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and, in such event, the Trustee shall act as the
Company's agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company at any time acts as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, 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 has one or more Paying Agents for any series of
Securities, it will, no later than 11:00 a.m., New York time, on or prior to
each due date of the principal of (and premium, if any) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum in immediately
available funds sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
The Company initially authorizes the Trustee to act as Paying Agent
for the Securities on its behalf. The Company may at any time and from time to
time authorize one or more Persons to act as Paying Agent in addition to or in
place of the Trustee with respect to any series of Securities issued under this
Indenture.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the written request and expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the Borough of Manhattan, The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Corporate Existence.
-------------------
Except as otherwise permitted under Article Eight, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and will use its best efforts to do or cause
to be done all things necessary to preserve and keep in full force and effect
its rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
SECTION 1005. Maintenance of Properties.
-------------------------
The Company will cause all tangible properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will 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 and advantageously conducted at all times; provided,
however, that nothing in this Section 1005 shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary.
SECTION 1006. Maintenance of Insurance.
------------------------
The Company will maintain, and will cause each of its Subsidiaries to
maintain, with insurers the Company reasonably believes to be financially sound
and reputable, insurance deemed adequate by the Company with respect to its
properties and business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against by corporations
in the same or similar business. Such insurance may be subject to co-insurance,
deductibility or similar clauses which, in effect, result in self-insurance of
certain losses, provided that such self-insurance is in accord with the
practices of corporations in the same or similar business and adequate insurance
reserves are maintained in connection with such self-insurance.
SECTION 1007. Limitation on Liens.
-------------------
(a) Nothing in this Indenture or in the Securities shall in any way
restrict or prevent the Company or any Subsidiary from incurring any
Indebtedness; provided that if this covenant shall be made applicable to the
Securities of a particular series, the Company covenants and agrees that it will
not, nor will it permit any Subsidiary to, issue, assume or guarantee any
Indebtedness secured by a Lien upon any property or assets of the Company or any
Subsidiary, respectively, without effectively providing that the Outstanding
Securities to which this section shall have been made applicable (together with,
if the Company so determines, any other Indebtedness then existing or thereafter
created ranking equally with the Securities) shall be secured equally and
ratably with (or prior to) such Indebtedness so long as such Indebtedness shall
be so secured (provided, that for the purpose of providing such equal and
ratable security, the principal amount of Outstanding Securities of any series
of Original Issue Discount Securities shall be such portion of the principal
amount as may be specified in the terms of that series).
The limitation in the preceding paragraph shall not apply to
Indebtedness secured by:
(i) Liens in existence on the date of original issue of
the Securities of any series to which this restriction is
made applicable;
(ii) Liens created solely for the purpose of securing Indebtedness
incurred to finance, refinance or refund the purchase price or cost
(including the cost of construction) of property or assets acquired after
the date hereof (by purchase, construction or otherwise), or Liens in
favor of guarantors of obligations or Indebtedness representing, or
incurred to finance, refinance or refund, such purchase price or cost,
provided that no such Lien shall extend to or cover any property or assets
other than the property or assets so acquired and improvements thereon and
the proceeds thereof (other than, in the case of Liens securing
Indebtedness incurred to finance construction or improvement costs, any
theretofore unimproved real property on which the property so constructed,
or the improvement, is located);
(iii) Liens which secure only Indebtedness owing by a Subsidiary to
the Company, to one or more Subsidiaries or to the Company and one or more
Subsidiaries;
(iv) Liens on any property or assets acquired from a Person which is
merged with or into the Company or any Subsidiary, or any Liens on the
property or assets of any corporation or other entity existing at the time
such corporation or other entity becomes a Subsidiary and, in either such
case, is not created as a result of or in connection with or in
anticipation of any such transaction (unless such Lien was created to
secure or provide for the payment of any part of the purchase price of
such Person);
(v) any Lien on any property, shares of capital stock, Indebtedness
or assets existing at the time of acquisition thereof and which is not
created as a result of or in connection with or in anticipation of such
acquisition (unless such Lien was created to secure or provide for the
payment of any part of the purchase price of such property, shares of
capital stock, Indebtedness or assets);
(vi) Liens on any property or assets acquired, constructed or
improved by the Company or any Subsidiary after the date of this Indenture
which are created or assumed contemporaneously with such acquisition,
construction or improvement, or within 180 days after the completion
thereof, to secure or provide for the payment of all or any part of the
cost of such acquisition, construction or improvement (including related
expenditures capitalized for Federal income tax purposes in connection
therewith) incurred after the date of this Indenture; or
(vii) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (i) through (vi) or of any
Indebtedness secured thereby, provided that the principal amount of
Indebtedness so secured thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Lien shall be
limited to all or part of substantially the same property which secured
the Lien extended, renewed or replaced (plus improvements on or additions
to such property).
(b) Notwithstanding Section 1007(a), the Company and one or more
Subsidiaries may issue, assume or guarantee Indebtedness secured by Liens which
would otherwise be subject to the foregoing restrictions in an aggregate
principal amount which, together with the aggregate outstanding principal amount
of all other Indebtedness of the Company and its Subsidiaries which would
otherwise be subject to the foregoing restrictions (not including Indebtedness
permitted to be secured under clauses (i) through (vi)) hereof does not at the
time of issuance, assumption, or guarantee thereof exceed 20% of Net Tangible
Assets.
(c) The following types of transactions, among others, shall not be
deemed to create Indebtedness secured by Liens:
(i) Liens 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
political entity affiliated therewith, or other obligations, pursuant to
any contract or statute or to secure any Indebtedness incurred for the
purpose of financing all or any part of the cost of acquiring,
constructing or improving the property subject to such Liens (including
Liens incurred in connection with pollution control, industrial revenue or
similar financings);
(ii) Liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehousemen's, vendors' or other
similar liens arising in the ordinary course of business, or pledges or
deposits to obtain the release of any of the foregoing, or Liens required
by any contract or statute in order to permit the Company or a Subsidiary
to perform any contract or subcontract made by it with or at the request
of a governmental entity (federal, state or municipal) or any department,
agency or instrumentality thereof, or to secure partial, progress, advance
or any other payments to the Company or any Subsidiary by a governmental
entity (federal, state or municipal) or any department, agency or
instrumentality thereof pursuant to the provisions of any contract or
statute;
(iii) pledges or deposits under workmen's compensation laws or
similar legislation and Liens of judgments thereunder which are not
currently dischargeable, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of money) or leases to
which the Company or any Subsidiary is a party, or deposits to secure
public or statutory obligations of the Company or any Subsidiary, or
deposits in connection with obtaining or maintaining self-insurance or to
obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar
matters, or deposits of cash or obligations of the United States of
America to secure surety, appeal or customs bonds to which the Company or
any Subsidiary is a party, or deposits in litigation or other proceedings
such as, but not limited to, interpleader proceedings;
(iv) Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against
the Company or any Subsidiary with respect to which the Company or such
Subsidiary is in good faith prosecuting an appeal or proceedings for
review; or Liens incurred by the Company or any Subsidiary for the purpose
of obtaining a stay or discharge in the course of any litigation or other
proceeding to which the Company or such Subsidiary is a party;
(v) Liens for taxes or assessments or governmental charges or levies
not yet due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by appropriate
proceedings;
(vi) Liens consisting of easements, rights-of-way, zoning
restrictions, restrictions on the use of real property, and defects and
irregularities in the title thereto, landlords' liens and other similar
liens and encumbrances none of which interfere materially with the use of
the property or assets covered thereby in the ordinary course of the
business of the Company or such Subsidiary and which do not, in the
reasonable opinion of the Company, materially detract from the value of
such properties; and
(vii) Liens on any property created, assumed or otherwise brought
into existence in contemplation of the sale or other disposition of the
property subject to such Liens, whether directly or indirectly, by way of
share disposition or otherwise; provided that 180 days from the creation
of such Liens the Company must have disposed of such property and any
Indebtedness secured by such Liens shall be without recourse to the
Company or any Subsidiary, and
(viii) Liens created in connection with financings under Chapter 39,
Subchapter 6 of the Texas Public Utility Regulatory Act or any analogous
law of a state other than the State of Texas.
SECTION 1008. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee on or before May 15 in each
year, a certificate of the Company's principal executive officer, principal
financial officer or principal accounting officer stating that in the course of
the performance by each signer of his duties as an officer of the Company he
would normally have knowledge of any default by the Company in the performance
and observance of any of the covenants contained in Sections 1001 to 1007
hereof, stating whether or not he has knowledge of any such default and, if so,
specifying each such default of which such signer has knowledge and the nature
thereof.
SECTION 1009. Defeasance of Certain Obligations.
---------------------------------
The Company may omit to comply with any term, provision or condition
set forth in Section 801 or in Sections 1004 to 1007, inclusive, hereof with
respect to the Securities of any series, provided that the following conditions
shall have been satisfied:
(1) the Company has deposited or caused to be irrevocably deposited
(except as provided in Section 402(c) hereof and the last paragraph of
Section 1003 hereof) with the Trustee (specifying that each deposit is
pursuant to this Section 1009) as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (i) money in the currency or
units of currency in which such Securities are payable in an amount, or
(ii) (except as provided in a supplemental indenture with respect to such
series) if Securities of such series are not subject to repurchase at the
option of Holders, (A) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance with
their terms will provide not later than one day before the due date of any
payment referred to in clause (x) or (y) of this subparagraph (1) money in
an amount, or (B) a combination thereof, in each case sufficient, in the
report of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which the Trustee shall be instructed
to apply to pay and discharge, (x) the principal of (and premium, if any)
and each installment of principal (and premium, if any) and interest, if
any, on the Outstanding Securities of such series on the Stated Maturity
of such principal or installment of principal or interest or to and
including the Redemption Date irrevocably designated by the Company
pursuant to subparagraph (4) of this Section 1009 and (y) any mandatory
sinking fund payments applicable to the Securities of such series on the
day on which payments are due and payable in accordance with the terms of
the Indenture and of the Securities of such series;
(2) no Event of Default or event which with notice or lapse of time
would become an Event of Default (including by reason of such deposit)
with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit;
(3) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that Holders of the Securities of such series
will not recognize income, gain, loss or expense for Federal income tax
purposes as a result of such deposit and defeasance of certain obligations
and will take into account all items of income, gain, loss or expense with
respect to the Securities at the same time and in the same manner as if
such deposit and defeasance had not taken place; (ii) that such provision
would not cause any outstanding Securities of such series then listed on
any national securities exchange to be delisted as a result thereof; and
(iii) that the defeasance trust is not, or is registered as, an investment
company under the Investment Company Act of 1940;
(4) if the Company has deposited or caused to be deposited money or
U.S. Government Obligations to pay or discharge the principal of (and
premium, if any) and interest, if any, on the Outstanding Securities of a
series to and including a Redemption Date on which all of the Outstanding
Securities of such series are to be redeemed, such Redemption Date shall
be irrevocably designated by a Board Resolution delivered to the Trustee
on or prior to the date of deposit of such money or U.S. Government
Obligations, and such Board Resolution shall be accompanied by an
irrevocable Company Request that the Trustee give notice of such
redemption in the name and at the expense of the Company not less than 30
nor more than 60 days prior to such Redemption Date in accordance with
Section 1104 hereof; and
(5) 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 the
Securities have been complied with.
SECTION 1010. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 801 or in Sections 1004 to
1007, inclusive, hereof, with respect to the Securities of any series if before
the time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but 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 1011. Further Assurances.
------------------
The Company shall, at its own cost and expense, execute and deliver
to the Trustee all such other documents, instruments and agreements and do all
such other acts and things as may be reasonably required, in the opinion of the
Trustee, to enable the Trustee to exercise and enforce its rights under this
Indenture and under the documents, instruments and agreements required under
this Indenture and to carry out the intent of this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 hereof for Securities of any
series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
authorized by a Board Resolution and evidenced by an Officers' Certificate. In
case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or pursuant to an election by the Company which is subject to a
condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If any Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Company and delivered
to the Security Registrar at least 60 days prior to the Redemption Date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company or (b) an entity specifically identified in such written
statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such
is the case, and
(7) CUSIP numbers, if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
---------------------------
On or prior to 11:00 A.M., New York time, on 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 1003 hereof) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date (to the extent that such amounts are not already on deposit at such
time in accordance with the provisions of Sections 401, 403 or 1009 hereof).
SECTION 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued and
unpaid interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Security (including any Global Security) which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series, 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 Security so surrendered; provided, that if a Global
Security is so surrendered, the new Global Security shall be in a denomination
equal to the unredeemed portion of the principal of the Global Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 hereof for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202 hereof. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
-------------------------------------------
Securities.
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In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 309 hereof, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section
1202, or (c) receive credit for Securities of such series (not previously so
credited) redeemed by the Company through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited shall
be received or credited by the Trustee at the sinking fund Redemption Price
specified in such Securities.
SECTION 1203. Redemption of Securities for Sinking Fund.
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Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying (a) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (b) whether or not the
Company intends to exercise its right, if any, to make an optional sinking fund
payment with respect to such series on the next ensuing sinking fund payment
date and, if so, the amount of such optional sinking fund payment, and (c) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 hereof, and will also deliver
to the Trustee any Securities to be so delivered. Such written statement shall
be irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such 60th day, to deliver such written
statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect therefor and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section
1203.
Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 hereof and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104 hereof. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107 hereof.
The Trustee shall not redeem or cause to be redeemed any Security of
a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
default in payment of interest with respect to Securities of that series or an
Event of Default with respect to the Securities of that series except that,
where the mailing of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default,
shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 513
hereof or the default or Event of Default cured on or before the 60th day
preceding the sinking fund payment date, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
1203 to the redemption of such Securities.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 1301. Counterparts.
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This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
SOUTHWESTERN ELECTRIC POWER COMPANY
By_/s/ Wendy G. Hargus__________
Name: Wendy G. Hargus
Title: Treasurer
Attest:
/s/ Stephen D. Wise______
Name: Stephen D. Wise
Title: Director, Finance
THE BANK OF NEW YORK,
as Trustee
By__/s/ Remo Reale______________
Name: Remo Reale
Title: Vice President
Attest:
__/s/ Mary La Gumina_____
Name: Mary La Gumina
Title: Assistant Vice President
STATE OF TEXAS )
: ss.:
COUNTY OF DALLAS )
On the 3rd day of March, 2000, before me personally came Wendy G.
Hargus, to me known, who, being by me duly sworn, did depose and say that she is
the Treasurer of Southwestern Electric Power Company, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
_/s/ Kathie R. Powell_______
Notary Public
My Commission expires 7-18-00
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 3rd day of March, 2000, before me personally came Remo Reale,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President of The Bank of New York, a New York banking corporation, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ William J. Cassels_______
Notary Public
My Commission expires 5-16-00