EXHIBIT 4(c)i
__________________________________________
FLORIDA POWER & LIGHT COMPANY
TO
The Chase Manhattan Bank
(National Association), Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of November 1, 1995
__________________________________________
TABLE OF CONTENTS
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE Definitions and Other Provisions of General
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 3
Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . 3
Discount Security. . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar or $. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate. . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering. . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date. . . . . . . . . . . . . . . . . . . . . . . 6
Required Currency. . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . . . . . . . . 7
Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date. . . . . . . . . . . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity. . . . . . . . . . . . . . . . . . . . . . . . . 7
Tranche. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . 7
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States. . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc. to Trustee and Company . . . . . . . . . 10
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents. . . . . . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO Security Forms. . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of Authentication . . . . 14
ARTICLE THREE The Securities. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . 17
SECTION 303. Execution, Authentication, Delivery and Dating . . . . 17
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer and Exchange . . 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . 22
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . 22
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . 24
SECTION 309. Cancellation by Security Registrar . . . . . . . . . . 24
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . 24
SECTION 311. Payment to Be in Proper Currency. . . . . . . . . . . . 24
SECTION 312. Extension of Interest Payment . . . . . . . . . . . . . 25
ARTICLE FOUR Redemption of Securities. . . . . . . . . . . . . . . . . . 25
SECTION 401. Applicability of Article . . . . . . . . . . . . . . . 25
SECTION 402. Election to Redeem; Notice to Trustee . . . . . . . . . 25
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . . 25
SECTION 404. Notice of Redemption . . . . . . . . . . . . . . . . . 26
SECTION 405. Securities Payable on Redemption Date . . . . . . . . . 27
SECTION 406. Securities Redeemed in Part . . . . . . . . . . . . . 27
ARTICLE FIVE Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 501. Applicability of Article . . . . . . . . . . . . . . . 28
SECTION 502. Satisfaction of Sinking Fund Payments with Securities . 28
SECTION 503. Redemption of Securities for Sinking Fund . . . . . . . 28
ARTICLE SIX Covenants. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 601. Payment of Principal, Premium and Interest. . . . . . . 29
SECTION 602. Maintenance of Office or Agency . . . . . . . . . . . . 29
SECTION 603. Money for Securities Payments to Be Held in Trust . . . 30
SECTION 604. Corporate Existence . . . . . . . . . . . . . . . . . . 31
SECTION 605. Maintenance of Properties . . . . . . . . . . . . . . . 31
SECTION 606. Annual Officer's Certificate as to Compliance . . . . . 32
SECTION 607. Waiver of Certain Covenants . . . . . . . . . . . . . . 32
ARTICLE SEVEN Satisfaction and Discharge . . . . . . . . . . . . . . . . 32
SECTION 701. Satisfaction and Discharge of Securities. . . . . . . . 32
SECTION 702. Satisfaction and Discharge of Indenture . . . . . . . . 35
SECTION 703. Application of Trust Money . . . . . . . . . . . . . . 35
ARTICLE EIGHT Events of Default; Remedies . . . . . . . . . . . . . . . . 36
SECTION 801. Events of Default . . . . . . . . . . . . . . . . . . . 36
SECTION 802. Acceleration of Maturity; Rescission and Annulment. . . 37
SECTION 803. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . 38
SECTION 804. Trustee May File Proofs of Claim . . . . . . . . . . . 39
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . 39
SECTION 806. Application of Money Collected . . . . . . . . . . . . 40
SECTION 807. Limitation on Suits . 40
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . . 41
SECTION 809. Restoration of Rights and Remedies . . . . . . . . . . 41
SECTION 810. Rights and Remedies Cumulative . . . . . . . . . . . . 41
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . . . . 41
SECTION 812. Control by Holders of Securities . . . . . . . . . . . 41
SECTION 813. Waiver of Past Defaults . . . . . . . . . . . . . . . . 42
SECTION 814. Undertaking for Costs . . . . . . . . . . . . . . . . 42
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . . . . . 43
ARTICLE NINE The Trustee . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 901. Certain Duties and Responsibilities . . . . . . . . . . 43
SECTION 902. Notice of Defaults. . . . . . . . . . . . . . . . . . . 44
SECTION 903. Certain Rights of Trustee . . . . . . . . . . . . . . . 44
SECTION 904. Not Responsible for Recitals or Issuance of Securities 46
SECTION 905. May Hold Securities . . . . . . . . . . . . . . . . . . 46
SECTION 906. Money Held in Trust . . . . . . . . . . . . . . . . . . 46
SECTION 907. Compensation and Reimbursement . . . . . . . . . . . . 46
SECTION 908. Disqualification; Conflicting Interests . . . . . . . . 47
SECTION 909. Corporate Trustee Required; Eligibility . . . . . . . . 47
SECTION 910. Resignation and Removal; Appointment of Successor . . . 48
SECTION 911. Acceptance of Appointment by Successor . . . . . . . . 49
SECTION 912. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . 50
SECTION 913. Preferential Collection of Claims Against Company . . . 51
SECTION 914. Co-trustees and Separate Trustees . . . . . . . . . . . 51
SECTION 915. Appointment of Authenticating Agent . . . . . . . . . . 52
ARTICLE TEN Holders' Lists and Reports by Trustee and Company . . . . . 54
SECTION 1001. Lists of Holders . . . . . . . . . . . . . . . . . . . 54
SECTION 1002. Reports by Trustee and Company . . . . . . . . . . . 54
ARTICLE ELEVEN Consolidation, Merger, Conveyance or Other Transfer . . . . 55
SECTION 1101. Company May Consolidate, Etc., Only on Certain Terms . 55
SECTION 1102. Successor Corporation Substituted . . . . . . . . . . 55
ARTICLE TWELVE Supplemental Indentures . . . . . . . . . . . . . . . . . . 56
SECTION 1201. Supplemental Indentures Without Consent of Holders . . 56
SECTION 1202. Supplemental Indentures With Consent of Holders . . . 57
SECTION 1203. Execution of Supplemental Indentures . . . . . . . . . 59
SECTION 1204. Effect of Supplemental Indentures . . . . . . . . . 59
SECTION 1205. Conformity With Trust Indenture Act . . . . . . . . . 59
SECTION 1206. Reference in Securities to Supplemental Indentures . . 59
SECTION 1207. Modification Without Supplemental Indenture. . . . . . 60
ARTICLE THIRTEEN Meetings of Holders; Action Without Meeting . . . . . 60
SECTION 1301. Purposes for Which Meetings May Be Called . . . . . . 60
SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . . . 60
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . . . . . 61
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . . . 61
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . . . . 62
SECTION 1306. Counting Votes and Recording Action of Meetings. . . . 63
SECTION 1307. Action Without Meeting . . . . . . . . . . . . . . . . 63
ARTICLE FOURTEEN Immunity of Incorporators, Stockholders, Officers
and Directors . . . . . . . . . . . . . . . . . . . 63
SECTION 1401. Liability Solely Corporate . . . . . . . . . . . . . . 63
ARTICLE FIFTEEN Subordination of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness. . . . . 64
SECTION 1502. Payment Over of Proceeds of Securities . . . . . . . . 64
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness 66
SECTION 1504. Subrogation. . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1505. Obligation of the Company Unconditional. . . . . . . . 67
SECTION 1506. Priority of Senior Indebtedness Upon Maturity . . . . 67
SECTION 1507. Trustee as Holder of Senior Indebtedness . . . . . . . 67
SECTION 1508. Notice to Trustee to Effectuate Subordination. . . . . 67
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness . 68
SECTION 1510. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness . . . . . . . . . . . 68
SECTION 1511. Paying Agents Other Than the Trustee . . . . . . . . . 68
SECTION 1512. Rights of Holders of Senior Indebtedness Not Impaired. 68
SECTION 1513. Effect of Subordination Provisions; Termination. . . . 69
Testimonium. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
FLORIDA POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of November 1, 1995
Trust Indenture Act SectionIndenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914(b)
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
(d) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
INDENTURE, dated as of November 1, 1995 between Florida
Power & Light Company, a corporation duly organized and existing under
the laws of the State of Florida (herein called the "Company"), having
its principal office at 700 Universe Boulevard, Juno Beach, Florida
33408, and The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America,
having its principal corporate trust office at 4 Chase MetroTech Center,
Brooklyn, New York 11245, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one or more
series as contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the meanings
assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and
the purchase of the Securities by the Holders 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:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by refer-
ence therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation or, at
the election of the Company from time to time, at the date of the
execution and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles applicable to the
Company, the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency, regulatory
authority or other governmental body having jurisdiction over the
Company; and
(d) 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.
Certain terms, used principally in Article Nine, are de-
fined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"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 through one or more intermediaries, 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 (other than the Company or an
Affiliate of the Company) authorized by the Trustee to act on behalf of the
Trustee to authenticate one or more series of Securities.
"Authorized Officer" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer or any other duly authorized officer of the Company.
"Board of Directors" means either the board of directors
of the Company or any committee thereof duly authorized to act in
respect of matters relating to this Indenture.
"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 a Place of Payment or any
other particular location specified in the Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as contemplated
by Section 301.
"Commission" means the Securities and Exchange Commis-
sion, as from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or, if at any time after the date of execution and
delivery of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written re-
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at 4 Chase MetroTech Center, Brooklyn, New York 11245.
"Corporation" means a corporation, association, company,
joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"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 802.
"interest" with respect to a Discount Security means interest, if any, borne
by such Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time shall be
legal tender for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with
respect to such Securities, as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 801.
"Governmental Authority" means the government of the United
States or of any State or Territory thereof or of the District of Columbia
or of any county, municipality or other political subdivision of any
thereof, or any department, agency, authority or other instrumentality of
any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other in-
struments which evidence a direct ownership interest in obli-
gations described in clause (a) above or in any specific interest or
principal payments due in respect thereof; provided, however, that the
custodian of such obligations or specific interest or principal payments
shall be a bank or trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state supervision or examination
with a combined capital and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by law, such custodian
shall be obligated to pay to the holders of such certificates,
depositary receipts or other instruments the full amount received by such
custodian in respect of such obligations or specific payments and shall
not be permitted to make any deduction therefrom.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in such
Security or in this Indenture, whether at the Stated Maturity, by
declaration of acceleration, upon call for redemption or otherwise.
"Officer's Certificate" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, or other counsel acceptable to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to Section 306 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 and the Company that
such Securities are held by a bona fide purchaser or purchasers 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 Securities Outstanding under
this Indenture, or the Outstanding Securities of any series or
Tranche, have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such obligor
owns all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series and each such Tranche,
as the case may be, determined without regard to this clause (x))
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 or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be
so owned shall be so disregarded; provided, however, that Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
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;
(y) the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802; and
(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a composite
currency that shall be deemed to be Outstanding for such purposes
shall be the amount of Dollars which could have been purchased by
the principal amount (or, in the case of a Discount Security, the
Dollar equivalent on the date determined as set forth below of the
amount determined as provided in (y) above) of such currency or
composite currency evidenced by such Security, in each such case
certified to the Trustee in an Officer's Certificate, based (i) on
the average of the mean of the buying and selling spot rates quoted
by three banks which are members of the New York Clearing House
Association selected by the Company in effect at 11:00 A.M. (New York
time) in The City of New York on the fifth Business Day preceding
any such determination or (ii) if on such fifth Business Day it
shall not be possible or practicable to obtain such quotations
from such three banks, on such other quotations or alternative
methods of determination which shall be as consistent as practicable
with the method set forth in (i) above;
provided, further, that, in the case of any Security the principal of
which is payable from time to time without presentment or surrender,
the principal amount of such Security that shall be deemed to be
Outstanding at any time for all purposes of this Indenture shall be
the original principal amount thereof less the aggregate amount of
principal thereof theretofore paid.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if
any, or interest, if any, on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time any or all of the specific terms of which
Securities, including without limitation 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,
joint venture, trust or unincorporated organization or any
Governmental Authority thereof.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the place or
places, specified as contemplated by Section 301, at which, subject
to Section 602, principal of and premium, if any, and interest, if
any, on the Securities of such series or Tranche are payable.
"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 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed (to the extent lawful) 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 Secur-
ity to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any securities authen-
ticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other than
non-recourse obligations and the indebtedness issued under this
Indenture) of, or guaranteed or assumed by, the Company for borrowed
money, including both senior and subordinated indebtedness for borrowed
money (other than the Securities), or for the payment of money relating
to any lease which is capitalized on the consolidated balance sheet of
the Company and its subsidiaries in accordance with generally accepted
accounting principles as in effect from time to time, or evidenced by
bonds, debentures, notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and refundings of any
such indebtedness or obligations, whether existing as of the date of
this Indenture or subsequently incurred by the Company.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Interest Rate" means a rate (whether fixed or variable)
at which an obligation by its terms is stated to bear simple interest.
Any calculation or other determination to be made under this Indenture
by reference to the Stated Interest Rate on a Security shall be made
without regard to the effective interest cost to the Company of such
Security and without regard to the Stated Interest Rate on, or the
effective cost to the Company of, any other indebtedness the Company's
obligations in respect of which are evidenced or secured in whole or in
part by such Security.
"Stated Maturity", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or extension).
"Tranche" means a group of Securities which (a) are of
the same series and (b) have identical terms except as to principal
amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such with respect to one or more series of Securities 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.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall, if
requested by the Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is necessary
to enable such Person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such Person, 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 certifi-
cate or opinion of, or representations by, counsel, unless such offi-
cer knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to the
matters upon which such Officer's Certificate or opinion are 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.
Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or other
inadvertent or unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted therefor in
corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the
actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as
of the date or dates required with respect to the document or
instrument for which it is substituted. Anything in this Indenture
to the contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the request
of the Company which could not have been taken had the original
document or instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and effect, except
to the extent that such action was a result of willful misconduct or
bad faith. Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of the Company
entitled to the benefits of this Indenture equally and ratably with
all other Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided by
this Indenture to be made, 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 or, alternatively, may be
embodied in and evidenced by the record of Holders voting in
favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Thirteen, or a
combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at
any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 901) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall be proved in
the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of
a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem
sufficient. 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.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the proviso to the definition of
Outstanding) and serial numbers of Securities held by any Person,
and the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, no-
tice, consent, election, waiver or other Act of a Holder 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 Com-
pany in reliance thereon, whether or not notation of such action
is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument executed
and delivered by or on behalf of a Holder may be revoked with
respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in
which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to such action may be
prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities
of such series or Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by Company
Order, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite
proportion of the Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of the
record date.
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document pro-
vided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission, telex or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges prepaid, to the
applicable address set opposite such party's name below or to such
other address as either party hereto may from time to time designate:
If to the Trustee, to:
The Chase Manhattan Bank (National Association)
Institutional Trust Group
4 Chase MetroTech Center
Brooklyn, New York 11245
Attention: Institutional Trust Group
Telephone: (718) 242-7287
Telecopy: (718) 242-5885
If to the Company, to:
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Attention: Dilek Samil, Treasurer
Telephone: (407) 694-6324
Telecopy: (407) 692-6299
Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally delivered,
on the date of delivery, if transmitted by facsimile transmission,
telex or other direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on the date of
receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice
shall be sufficiently given, and shall be deemed given, to Holders
if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder 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 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 to Holders by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder. 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.
Any notice required by this Indenture may be waived in writing by
the Person entitled to receive such notice, either before or after the
event otherwise to be specified therein, 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.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed
to be included in this Indenture by, or is otherwise governed by, any
of the provisions of the Trust Indenture Act, such other provision
shall control; and if any provision hereof otherwise conflicts with
the Trust Indenture Act, the Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the
Securities shall be held to 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 the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder, the Holders, and so long as the notice
described in Section 1513 hereof has not been given, the holders of
Senior Indebtedness, 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,
except to the extent that the law of any other jurisdiction shall be
mandatorily applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity 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 other than a provision in
Securities of any series, or any Tranche thereof, or in the Board
Resolution or Officer's Certificate which establishes the terms of
the Securities of such series or Tranche, which specifically states
that such provision shall apply in lieu of this Section) payment of
interest or principal and premium, if any, need not be made at such
Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment, except that if such Business
Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day in each case with the
same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, and, if such payment is
made or duly provided for on such Business Day, no interest shall
accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to
such supplemental indenture or Board Resolution, 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 officers executing such Securities, as
evidenced by their execution of the Securities. If the form or forms
of Securities of any series are established in a Board Resolution or
in an Officer's Certificate pursuant to a Board Resolution, such
Board Resolution and Officer's Certificate, if any, shall be
delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery
of such Securities.
Unless otherwise specified as contemplated by Section
301, the Securities of each series shall be issuable in registered
form without coupons. The definitive Securities shall be produced in
such manner as shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank
(National Association) as Trustee
By:
Authorized Officer
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.
The Securities may be issued in one or more series.
Prior to the authentication and delivery of Securities of any series
there shall be established by specification in a supplemental
indenture or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from Securities
of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such 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 such series
pursuant to Section 304, 305, 306, 406 or 1206 and, except for
any Securities which, pursuant to Section 303, are deemed never
to have been authenticated and delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such series, or
any Tranche thereof, shall be payable on any Interest Payment
Date, if other than the Persons in whose names such Securities
(or one or more Predecessor Securities) are registered at the
close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such 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);
(e) the rate or rates at which the Securities of such
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, if any, for the interest payable on such Securities
on any Interest Payment Date; the right of the Company, if any,
to extend the interest payment periods and the duration of any
such extension as contemplated by Section 312; and the basis of
computation of interest, if other than as provided in Section
310;
(f) the place or places at which or methods by which
(1) the principal of and premium, if any, and interest, if any,
on Securities of such series, or any Tranche thereof, shall be
payable, (2) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (3) exchanges of
Securities of such series, or any Tranche thereof, may be
effected and (4) 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; the Security Registrar and any
Paying Agent or Agents for such series or Tranche; and if such is
the case, that the principal of such Securities shall be payable
without presentment or surrender thereof;
(g) 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 the Securities of such 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;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such 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 such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of Section 404 in the
case of mandatory redemption or redemption at the option of the
Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other than
denominations of $1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if
any, and interest, if any, on the Securities of such series, or
any Tranche thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or in-
terest, if any, on the Securities of such 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;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such 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;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, may be determined with reference
to an index or other fact or event ascertainable outside of this
Indenture, the manner in which such amounts shall be determined
to the extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series, or
any Tranche thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, 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 Six;
(p) 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;
(q) the obligations or instruments, if any, which shall
be considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof, denominated in
a currency other than Dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations on
the rights of the Holder or Holders of such Securities to
transfer or exchange the same or to obtain the registration of
transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and all
other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all
matters incidental thereto which are not specifically addressed
in a supplemental indenture as contemplated by clause (g) of
Section 1201;
(t) to the extent not established pursuant to clause
(r) 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;
(u) 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; and
(v) any other terms of the Securities of such series,
or any Tranche thereof, not inconsistent with the provisions of
this Indenture.
Unless otherwise provided in a supplemental indenture,
Board Resolution or Officer's Certificate establishing the terms of
any series of Securities, or Tranche thereof, the Securities of each
series, or any Tranche thereof, shall be subordinated in the right of
payment to Senior Indebtedness as provided in Article Fifteen.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that the
specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with procedures
specified in a Company Order as contemplated by clause (b) of Section
303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, the
Securities of each series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, the
Securities shall be executed on behalf of the Company by an
Authorized Officer and may have the corporate seal of the Company
affixed thereto or reproduced thereon and attested by any other
Authorized Officer. The signature of any or all of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of
the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold
such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities of
a series, for original issue, at one time or from time to time in
accordance with the Company Order referred to below, upon receipt by
the Trustee of:
(a) the instrument or instruments establishing the form
or forms and terms of such series, as provided in Sections 201
and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, in the case of Securities of a
series subject to a Periodic Offering, to the extent that the
terms of such Securities shall not have been established in an
indenture supplemental hereto or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or
Board Resolution, all as contemplated by Sections 201 and 301,
either (i) establishing such terms or (ii) specifying procedures,
acceptable to the Trustee, by which such terms are to be
established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery
pursuant to oral or electronic instructions from the Company or
any agent or agents thereof, which oral instructions are to be
promptly confirmed electronically or in writing), in either case
in accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that the form or forms of such Securities have been duly
authorized by the Company and have been established in conformity
with the provisions of this Indenture;
(ii) that the terms of such Securities have been
duly authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) that such Securities, when authenticated and delivered
by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by this Indenture, and enforceable
in accordance with their terms, subject, as to enforcement, to laws
relating to or affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and insolvency
laws and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of such
Securities (provided that such Opinion of Counsel addresses the authentication
and delivery of all Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel may opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant
to such procedures (acceptable to the Trustee) as may be specified
from time to time by a Company Order or Orders, all as contemplated
by and in accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been duly
authorized by the Company and will have been established in conformity
with the provisions of this Indenture; and
(y) such Securities, when authenticated and delivered by the
Trustee in accordance with this Indenture and the Company Order or
Orders or specified procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided
by the Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of
any of such Securities, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and other documents delivered pursuant to Sections 201 and 301 and
this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such opinion or
other documents have been superseded or revoked or expire by their terms.
In connection with the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume that
the Company's instructions to authenticate and deliver such Securities do not
violate any rules, regulations or orders of any Governmental Authority having
jurisdiction over the Company.
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate
as permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche thereof,
each Security shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, 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 or its agent 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 to the Company, or any Person
acting on its behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to the Security
Registrar for cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102 and need not
be accompanied by an Officer's Certificate and 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 hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, or
any Tranche thereof, 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, with such
appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities; provided, however, that temporary Securities
need not recite specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be exchangeable,
without charge to the Holder thereof, for definitive Securities of such
series or Tranche upon surrender of such temporary Securities at the
office or agency of the Company maintained pursuant to Section 602 in a
Place of Payment for such Securities. Upon such surrender of temporary
Securities, the Company shall, except as aforesaid, execute and the Trustee
shall authenticate and deliver in exchange therefor definitive Securities
of the same series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and of
like tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in each office designated
pursuant to Section 602, with respect to the Securities of each series or
any Tranche thereof, a register (all registers kept in accordance with
this Section being 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 of such series or
Tranche and the registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register for the Securities
of each series on a consolidated basis, and such Person is referred to
herein, with respect to such series, as the "Security Registrar." Anything
herein to the contrary notwithstanding, the Company may designate one or
more of its offices as an office in which a register with respect to the
Securities of one or more series, or any Tranche or Tranches thereof, shall
be maintained, and the Company may designate itself the Security Registrar
with respect to one or more of such series. The Security Register shall be
open for inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series or
Tranche at the office or agency of the Company maintained pursuant to
Section 602 in a Place of Payment for such series or Tranche, 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 and Tranche, of authorized denominations and of like tenor
and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any Security
of such series or Tranche may be exchanged at the option of the Holder, for
one or more new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at any 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 delivered upon any registration of transfer or exchange
of Securities shall be 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, the Trustee or the
Security Registrar) be duly endorsed or shall be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Trustee or
the Security Registrar, as the case may be, duly executed by the Holder
thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with respect
to Securities of any series, or any Tranche thereof, no service charge shall
be made 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
Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any series,
or any Tranche thereof, during a period of 15 days immediately preceding the
date notice is to be given identifying the serial numbers of the Securities
of such series or Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
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
Tranche, 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 (a)
evidence to their satisfaction of the ownership of and the destruction,
loss or theft of any Security and (b) such security or indemnity as may be
reasonably 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 is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, 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, 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 reasonable expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 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
other than the Holder of such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, 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.
Subject to Section 312, 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
related 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 (a) or (b) below:
(a) 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 date (herein called 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 promptly 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 the address of such Holder 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.
(b) 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 and
Section 305, 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.
The Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and premium, if any, and (subject
to Sections 305 and 307) 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.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security Registrar.
The Company may at any time deliver to the Security Registrar for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever or which the
Company shall not have issued and sold, and all Securities so delivered
shall be promptly canceled by the Security Registrar. No Securities shall
be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar shall be disposed of
in accordance with a Company Order delivered to the Security Registrar and
the Trustee, and the Security Registrar shall promptly deliver a certificate
of disposition to the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that canceled Securities be
returned to it. The Security Registrar shall promptly deliver evidence of
any cancellation of a Security in accordance with this Section 309 to the
Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section
301 for Securities of any series, or any Tranche thereof, interest on
the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months and on the basis of
the actual number of days elapsed within any month in relation to the
deemed 30 days of such month.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars or in
a composite currency (the "Required Currency"), except as otherwise
specified with respect to such Securities as contemplated by Section
301, the obligation of the Company to make any payment of the
principal thereof, or the premium, if any, or interest, if any,
thereon, shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery
shall result in the Trustee timely holding the full amount of the
Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate to exchange
such currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and
exchange rate fluctuation, shall be borne by the Company, the Company
shall remain fully liable for any shortfall or delinquency in the
full amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the case
of its negligence or willful misconduct.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the
Securities of any series hereunder, to extend interest payment
periods on all Securities of one or more series, or Tranches thereof,
if so specified as contemplated by Section 301 with respect to such
Securities and upon such terms as may be specified as contemplated by
Section 301 with respect to such Securities.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, 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 for Securities of such series or Tranche)
in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of Securities
(a) prior to the expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Indenture or (b)
pursuant to an election of the Company which is subject to a condition
specified in the terms of such Securities, the Company shall furnish the
Trustee with an Officer's Certificate evidencing compliance with such
restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any Tranche thereof,
are to be redeemed, the particular Securities to be redeemed shall be
selected by the Security Registrar from the Outstanding Securities of such
series or Tranche not previously called for redemption, by such method as
shall be provided for any particular series or Tranche, or, in the absence
of any such provision, by such method of random selection as the Security
Registrar shall deem fair and appropriate and which may, in any case, provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of such series or Tranche or any integral
multiple thereof) of the principal amount of Securities of such series or
Tranche of a denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if, as
indicated in an Officer's Certificate, the Company shall have offered to
purchase all or any principal amount of the Securities then Outstanding of
any series, or any Tranche thereof, and less than all of such Securities as
to which such offer was made shall have been tendered to the Company for such
purchase, the Security Registrar, if so directed by Company Order, shall
select for redemption all or any principal amount of such Securities which
have not been so tendered.
The Security Registrar shall promptly notify the Company
and the Trustee in writing of the Securities selected for redemption
and, in the case of any Securities selected to be redeemed in part,
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 Securities which has been
or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner pro-
vided in Section 106 to the Holders of the Securities to be redeemed
not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the particular
Securities to be redeemed and the portion of the principal amount
of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price, together
with accrued interest, if any, to the Redemption Date, 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,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of
such notice, such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that such redemption
shall be conditional upon the receipt by the Paying Agent or Agents for
such Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall not
have been so received such notice shall be of no force or effect and the
Company shall not be required to redeem such Securities. In the event
that such notice of redemption contains such a condition and such money
is not so received, the redemption shall not be made and within a
reasonable time thereafter notice shall be given, in the manner in which
the notice of redemption was given, that such money was not so received
and such redemption was not required to be made, and the Paying Agent or
Agents for the Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such Securities which
had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, at the Company's
request, by the Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Securities shall be given by the
Security Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless, in the case of an unconditional notice of
redemption, the Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be redeemed only in
part 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), 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 and Tranche, of any authorized denomination requested by such
Holder and of like tenor and in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any series,
or any Tranche thereof, except as otherwise specified as contemplated
by Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche thereof,
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, or any Tranche thereof, is herein referred
to as an "optional sinking fund payment". If provided for by the
terms of Securities of any series, or any Tranche thereof, the cash
amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied
to the redemption of Securities of the series or Tranche in respect
of which it was made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been (i) redeemed either at the
election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities or (ii) repurchased by the
Company in the open market, by tender offer or otherwise, in each
case in satisfaction of all or any part of such mandatory sinking
fund payment; provided, however, that no Securities shall be applied
in satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities so
applied shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of
such mandatory sinking fund payment shall be reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment
date for the Securities of any series, or any Tranche thereof, the
Company shall deliver to the Trustee an Officer's Certificate
specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Securities of such
series or Tranche pursuant to Section 502 and stating the basis for such
credit and that such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such Officer's Certificate,
the next succeeding sinking fund payment for such series or Tranche shall
be made entirely in cash in the amount of the mandatory sinking fund
payment. Not less than 40 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 403 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 404. Such notice
having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the Securities
of each series, or any Tranche thereof, an office or agency where payment of
such Securities shall be made, where the registration of transfer or exchange
of such Securities may be effected and where notices and demands to or upon
the Company in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location,
and any change in the location, of each such office or agency and prompt
notice to the Holders of any such change in the manner specified in Section
106. If at any time the Company shall fail to maintain any such required
office or agency in respect of Securities of any series, or any Tranche
thereof, or shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of transfer or
exchange thereof may be effected and notices and demands in respect
thereof may be served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time designate one or more other
offices or agencies with respect to the Securities of one or more series,
or any Tranche thereof, for any or all of the foregoing purposes and may
from time to time rescind such designations; provided, however, that,
unless otherwise specified as contemplated by Section 301 with respect
to the Securities of such series or Tranche, no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth above.
The Company shall give prompt written notice to the Trustee, and prompt
notice to the Holders in the manner specified in Section 106, of any such
designation or rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform all
functions to be performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall,
on or before each due date of the principal of and premium, if any, and
interest, if any, on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided. The
Company shall promptly notify the Trustee of any failure by the Company
(or any other obligor on such Securities) to make any payment of principal
of or premium, if any, or interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents sums sufficient
(without duplication) to pay the principal and premium or interest so
becoming due, such sums 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 shall promptly notify the Trustee of
any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of
any series, or any Tranche thereof, other than the Company or the Trustee,
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities 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;
(b) give the Trustee notice of any failure by the Company (or
any other obligor upon such Securities) to make any payment of principal
of or premium, if any, or interest, if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent and
furnish to the Trustee such information as it possesses regarding
the names and addresses of the Persons entitled to such sums.
The Company may at any time 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, if so stated in a Company
Order delivered to the Trustee, in accordance with the provisions of
Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any, or interest, if any,
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,
upon such payment or discharge, the Holder of such Security shall, as an
unsecured general creditor and not as a Holder of an Outstanding Security,
look only to the Company for payment of the amount so due and payable and
remaining unpaid, 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 payment to the Company,
may at the expense of the Company cause to be mailed, on one occasion only,
notice to such Holder 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 mailing, any unclaimed balance of such money then remaining will be
paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties
used or useful in the conduct of its business to be maintained and kept
in good condition, repair and working order and shall cause (or, with
respect to property owned in common with others, make reasonable effort
to cause) to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that nothing in
this Section shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than October 1 in each year, commencing October 1, 1996,
the Company shall deliver to the Trustee an Officer's Certificate which
need not comply with Section 102, executed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this Indenture, such
compliance to be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in (a) Section
602 or any additional covenant or restriction specified with respect
to the Securities of any series, or any Tranche thereof, as
contemplated by Section 301 if before the time for such compliance
the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches with respect to
which compliance with Section 602 or such additional covenant or
restriction is to be omitted, considered as one class, shall, by Act
of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition and
(b) Section 604, 605 or Article Eleven if before the time for such
compliance the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition; but, in the
case of (a) or (b), no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect
of any such term, provision or condition shall remain in full force
and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for all
purposes of this Indenture, and the entire indebtedness of the
Company in respect thereof shall be deemed to have been satisfied and
discharged, if there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting the
redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which when
due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or
held by the Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest,
if any, due and to become due on such Securities or portions thereof
on or prior to Maturity; provided, however, that in the case of the
provision for payment or redemption of less than all the Securities
of any series or Tranche, such Securities or portions thereof shall
have been selected by the Security Registrar as provided herein and,
in the case of a redemption, the notice requisite to the validity of
such redemption shall have been given or irrevocable authority shall
have been given by the Company to the Trustee to give such notice,
under arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the Trustee and
such Paying Agent:
(x) if such deposit shall have been made prior
to the Maturity of such Securities, a Company Order
stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations so
deposited constitute Eligible Obligations and do not
contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of
nationally recognized standing, selected by the Company,
to the effect that the requirements set forth in clause
(b) above have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity
of such Securities, an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions thereof will
have been satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security or Securities
or portions thereof with respect to which such deposit was made are
deemed to have been paid for all purposes of this Indenture and that the
entire indebtedness of the Company in respect thereof has been satisfied
and discharged as contemplated in this Section. In the event that all of
the conditions set forth in the preceding paragraph shall have been
satisfied in respect of any Securities or portions thereof except that,
for any reason, the Officer's Certificate specified in clause (z) shall
not have been delivered, such Securities or portions thereof shall
nevertheless be deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of this Indenture or
of any of the covenants of the Company under Article Six (except the
covenants contained in Sections 602, 603 and 604) or any other covenants
made in respect of such Securities or portions thereof as contemplated
by Section 301, but the indebtedness of the Company in respect of such
Securities or portions thereof shall not be deemed to have been
satisfied and discharged prior to Maturity for any other purpose, and
the Holders of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the indebtedness
represented thereby; and, upon Company Request, the Trustee shall
acknowledge in writing that such Securities or portions thereof are
deemed to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the Securities
of any series, or any Tranche thereof, is to be provided for in the
manner and with the effect provided in this Section, the Security
Registrar shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is the
case, in respect of which the Company's indebtedness shall have been
satisfied and discharged, all as provided in this Section do not
mature and are not to be redeemed within the 60 day period commencing
with the date of the deposit of moneys or Eligible Obligations, as
aforesaid, the Company shall, as promptly as practicable, give a
notice, in the same manner as a notice of redemption with respect to
such Securities, to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been
paid for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections 304,
305, 306, 403, 404, 406, 503 (as to notice of redemption), 602, 603, 907,
909, 910 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited
as provided in this Section against, any tax, fee or other charge
imposed on or assessed against such Eligible Obligations or the principal
or interest received in respect of such Eligible Obligations, including,
but not limited to, any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if,at any time
after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied or discharged, pursuant to
this Section (without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be required to
return the money or Eligible Obligations, or combination thereof, deposited
with it as aforesaid to the Company or its representative under any
applicable Federal or State bankruptcy, insolvency or other similar law,
such Security shall thereupon be deemed retroactively not to have been
paid and any satisfaction and discharge of the Company's indebtedness
in respect thereof shall retroactively be deemed not to have been
effected, and such Security shall be deemed to remain Outstanding and
(b) any satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the last
paragraph of Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been
satisfied and discharged, as aforesaid, and to remain in full force and
effect, and the Company shall execute and deliver such instruments as the
Trustee shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 403, 404, 406, 503 (as to notice of redemption), 602, 603, 907,
909, 910 and 915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and turn
over to the Company, subject to the lien provided by Section 907, any
and all money, securities and other property then held by the Trustee
for the benefit of the Holders of the Securities other than money and
Eligible Obligations held by the Trustee pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments on
any such Eligible Obligations, shall be withdrawn or used for any
purpose other than, and such Eligible Obligations and money deposited
and the principal and interest payments on any such Eligible
Obligations shall be held in trust for, the payment of the principal
of and premium, if any, and interest, if any, on the Securities or
portions of principal amount thereof in respect of which such deposit
was made, all subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have occurred and
be continuing an Event of Default, any cash received from such
principal or interest payments on such Eligible Obligations, if not
then needed for such purpose, shall, to the extent practicable, be
invested in Eligible Obligations of the type described in clause (b)
in the first paragraph of Section 701 maturing at such times and in
such amounts as shall be sufficient to pay when due the principal of
and premium, if any, and interest, if any, due and to become due on
such Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid
over to the Company as received, free and clear of any trust, lien or
pledge under this Indenture except the lien provided by Section 907;
and provided, further, that, so long as there shall not have occurred
and be continuing an Event of Default, any moneys held in accordance
with this Section on the Maturity of all such Securities in excess of
the amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over to
the Company free and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company pursuant to this
Section shall be held until such Event of Default shall have been
waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security
of such series within 60 days after the same becomes due and pay-
able (whether or not payment is prohibited by the provisions of
Article Fifteen hereof); provided, however, that a valid
extension of the interest payment period by the Company as
contemplated in Section 312 of this Indenture shall not
constitute a failure to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series within three (3) Business
Days after its Maturity (whether or not payment is prohibited by
the provisions of Article Fifteen hereof); or
(c) failure to perform, or breach of, any covenant
or warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which or
breach of which is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other
than such series) for a period of 60 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 principal amount of the Outstanding Securities of
such series, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder, unless the Trustee, or the Trustee
and the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the Trustee
and the Holders of such principal amount of Securities of such
series, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the
Company within such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
by one or more Persons other than the Company seeking reorgani-
zation, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or for any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and any such decree or order for
relief or any such other decree or order shall have remained un-
stayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State bank-
ruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in a case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorga-
nization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts
generally as they become due, or the authorization of such action
by the Board of Directors; or
(f) any other Event of Default specified with re-
spect to Securities of such series.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be
continuing with respect to Securities of any series at the time
Outstanding, then in every such case the Trustee or the Holders of
not less than 33% in principal amount of the Outstanding Securities
of such series may declare the principal amount (or, if any of the
Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the
terms thereof as contemplated by Section 301) of all of the
Securities of such 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 receipt by the Company of notice of such
declaration such principal amount (or specified amount) shall become
immediately due and payable (provided that the payment of principal
of such Securities shall remain subordinated to the extent provided
in Article Fifteen hereof); provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more
than one series of Securities, the Trustee or the Holders of not less
than 33% in aggregate principal amount of the Outstanding Securities
of all such series, considered as one class (and not the Holders of
the Securities of any one of such series), may make such declaration
of acceleration.
At any time after such a declaration of acceleration
with respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall have
been obtained by the Trustee as hereinafter in this Article provided,
the Event or Events of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been
waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with
the Trustee a sum sufficient to pay
(1) all overdue interest on all Securities
of such series;
(2) the principal of and premium, if any, on
any Securities of such 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;
(3) to the extent that payment of such
interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such
Securities;
(4) all amounts due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the non-payment of the
principal of Securities of such series which shall have become
due solely by such declaration of acceleration, shall have been
cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for Enforcement by
Trustee.
If an Event of Default described in clause (a) or (b) of
Section 801 shall have occurred and be continuing, the Company shall,
upon demand of the Trustee, pay to it, for the benefit of the Holders
of the Securities of the series with respect to which such Event of
Default shall have occurred, the whole amount then due and payable on
such Securities for principal and premium, if any, and interest, if
any, and, to the extent permitted by law, interest on premium, if
any, and on any overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover any amounts due
to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the moneys ad-
judged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securi-
ties, wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be 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, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 804. 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 (irrespec-
tive 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 other-
wise,
(a) to file and prove a claim for the whole amount
of principal, premium, if any, and interest, if any, owing and
unpaid in respect of the 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 amounts due to
the Trustee under Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, seques-
trator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any
amounts due it under Section 907.
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 805. 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 in respect of which such
judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen, any money
collected by the Trustee pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation of the
Securities in respect of which or for the benefit of which such money
shall have been collected 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 907;
Second: To the payment of the amounts then due and un-
paid upon the Securities for principal of and premium, if any,
and interest, if any, in respect of which or for the benefit of
which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable
on such Securities for principal, premium, if any, and interest,
if any, respectively; and
Third: To the Company.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any proceed-
ing, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series in respect of which an Event of Default shall
have occurred and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders or to obtain or to seek
to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.
SECTION 808. 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 and 312) interest, if any, on such
Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 809. 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
shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such
proceeding, the Company, and Trustee and such Holder shall be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and such Holder shall
continue as though no such proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of
Section 306, 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 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder 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 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, with respect to the Securities
of such series; provided, however, that if an Event of Default shall
have occurred and be continuing with respect to more than one series of
Securities, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class,
shall have the right to make such direction, and not the Holders of the
Securities of any one of such series; and provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve the
Trustee in personal liability in circumstances where indemnity
would not, in the Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in 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
(a) in the payment of the principal of or premium,
if any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 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 and all Events of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by
his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in aggregate principal amount
of the Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or
premium, if any, or interest, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case
of redemption, on or after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
(1) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series, conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee shall exercise,
with respect to Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed
to limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any one or
more series, as provided herein, relating to the time, method
and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the 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.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities
of such series in the manner and to the extent required to do so by the
Trust Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character
specified in Section 801(c), no such notice to Holders shall be given
until at least 75 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, 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 shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(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 (subject to applicable legal requirements) be
entitled to examine, during normal business hours, 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; and
(h) except as otherwise provided in Section 801, the
Trustee shall not be charged with knowledge of any Event of
Default with respect to the Securities of any series for which it
is acting as Trustee unless either (1) a Responsible Officer of
the Trustee shall have actual knowledge of the Event of Default
or (2) written notice of such Event of Default shall have been
given to the Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. 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 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.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may otherwise deal with
the Company with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The
Trustee shall be under no liability for interest on or investment of any
money received by it hereunder except as expressly provided herein or
otherwise agreed with, and for the sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time 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);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent
that any such expense, disbursement or advance may be
attributable to its negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from and against, any
loss, liability or expense reasonably incurred by it arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder or the performance of its duties 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, except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful misconduct or bad
faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such other
than property and funds held in trust under Section 703 (except as
otherwise provided in Section 703). "Trustee" for purposes of this Section
shall include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee hereunder shall
not affect the rights of any other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate
such conflicting interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in the Trust Indenture
Act and this Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any series, shall not
be deemed to have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be
(a) a Corporation organized and doing business under the laws of the
United States, any State or Territory 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 or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a Corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to supervision
or examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(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 911 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 908
after written request therefor by the Company or by any
Holder who has been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 909 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, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (y) subject to Section 814,
any Holder who has been a bona fide Holder 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.
(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 (other than as contemplated in clause (y) in subsection (d) of this
Section), 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 911. 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
911, 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 911, any Holder
who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of itself 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) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred
and be continuing, and except with respect to a Trustee appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution appointing
a successor Trustee, effective as of a date specified therein, and
(ii) an instrument of acceptance of such appointment, effective as of
such date, by such successor Trustee in accordance with Section 911,
the Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall be deemed
to have been appointed by the Company pursuant to subsection (e) of
this Section and such appointment shall be deemed to have been accepted
as contemplated in Section 911, all as of such date, and all other
provisions of this Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent inconsistent
with this subsection (f).
(g) 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 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, 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, 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
all sums owed to it, 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 such 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, 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, upon payment of all sums owed to it, 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 instruments which fully vest in and confirm to such
successor Trustee all such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 912. 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 913. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company or such obligor 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 or such obligor arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange, acceptance
or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee
shall have power to appoint, and, upon the written request of the Trustee
or of the Holders of at least 33% in principal amount of the Securities
then Outstanding, the Company shall for such purpose join with the
Trustee in the execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the
Trustee either to act as co-trustee, jointly with the Trustee, or to act
as separate trustee, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons,
in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section.
If the Company does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default shall
have occurred and be continuing, the Trustee alone shall have power
to make such appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right
or power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and delivered,
and all rights, powers, duties and obligations hereunder in respect
of the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Trustee hereunder,
shall be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred
or imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed
either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the Trustee
shall be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Company, may accept the resignation of or
remove any co-trustee or separate trustee appointed under this Section, and,
if an Event of Default shall have occurred and be continuing, the Trustee
shall have power to accept the resignation of, or remove, any such co-
trustee or separate trustee without the concurrence of the Company. Upon
the written request of the Trustee, the Company shall join with the Trustee
in the execution and delivery of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be appointed in
the manner provided in this Section;
(d) no co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or omission of
the Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities of one or more series, or any Tranche
thereof, which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series or Tranche issued upon original
issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a
Corporation organized and doing business under the laws of the United
States, any State or Territory thereof or the District of Columbia or
the Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in
this Section.
Any Corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or any
Corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any Corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such Corporation shall be otherwise eligible under this Sec-
tion, without the execution or filing of any paper or any further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent
and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of
this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. 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.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payments, in
accordance with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be ap-
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank
(National Association) As Trustee
By:
As Authenticating Agent
By:
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have an
office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have
Securities of such series authenticated upon original issuance, the
Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint, in accordance with this Section
and in accordance with such procedures as shall be acceptable to the
Trustee, an Authenticating Agent having an office in a Place of
Payment designated by the Company with respect to such series of
Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 1 and September 1 in
each year, commencing September 1, 1995, and at such other times as
the Trustee may request in writing, the Company shall furnish or
cause to be furnished to the Trustee information as to the names and
addresses of the Holders, and the Trustee shall preserve such
information and similar information received by it in any other
capacity and afford to the Holders access to information so preserved
by it, all to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however, that no such
list need be furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than June 1 in each year, commencing
June 1, 1996, the Trustee shall transmit to the Holders and the
Commission a report, dated as of the next preceding April 1, with
respect to any events and other matters described in Section 313(a)
of the Trust Indenture Act, in such manner and to the extent required
by the Trust Indenture Act. The Trustee shall transmit to the
Holders and the Commission, and the Company shall file with the
Trustee (within 30 days after filing with the Commission in the case
of reports which pursuant to the Trust Indenture Act must be filed
with the Commission and furnished to the Trustee) and transmit to the
Holders, such other information, reports and other documents, if any,
at such times and in such manner, as shall be required by the Trust
Indenture Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Corporation, or convey or otherwise transfer or lease its properties
and assets substantially as an entirety to any Person, unless
(a) the Corporation formed by such consolidation or
into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
Person organized and existing under the laws of the United
States, 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 Outstanding
Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such trans-
action and treating any indebtedness for borrowed money which
becomes an obligation of the Company as a result of such
transaction as having been incurred by the Company at the time of
such transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, or other transfer or
lease and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to
such transactions have been complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by
the Company into any other Corporation or any conveyance, or other
transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 1101, the
successor Corporation formed by such consolidation or into which the
Company is merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as
the Company herein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities Outstanding
hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. 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:
(a) 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, all as
provided in Article Eleven; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for the
benefit of the Holders of, or to remain in effect only so long as
there shall be Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof, or to
surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect
to all or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this In-
denture or to add any new provision to this Indenture; provided,
however, that if such change, elimination or addition shall
adversely affect the interests of the Holders of Securities of
any series or Tranche Outstanding on the date of such indenture
supplemental hereto in any material respect, such change,
elimination or addition shall become effective (i) with respect
to such series or Tranche only pursuant to the provisions of
Section 1202 hereof or (ii) when no Security of such series or
Tranche remains Outstanding; or
(e) to provide collateral security for all but not
part of the Securities; or
(f) to establish the form or terms of Securities of
any series or Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the solicitation
of the vote or consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee with re-
spect 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 911(b); or
(i) to provide for the procedures required to permit the Company
to utilize, at its option, a non-certificated system of registration for
all, or any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered for registration
of transfer, (3) all or any series of Securities, or any Tranche thereof,
may be surrendered for exchange and (4) notices and demands to or upon
the Company in respect of all or any series of Securities, or any
Tranche thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other changes to the provisions hereof or to add
other provisions with respect to matters or questions arising under this
Indenture, provided that such other changes or additions shall not
adversely affect the interests of the Holders of Securities of any series
or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery
of this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one
or more changes to any provisions hereof or the
inclusion herein of any additional provisions, or shall
by operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one
or more changes to, or the elimination of, any
provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained
herein, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series then Outstanding under this Indenture, considered as one
class, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture;
provided, however, that if there shall be Securities of more than one
series Outstanding hereunder and if a proposed supplemental indenture
shall directly affect the rights of the Holders of Securities of one
or more, but less than all, of such series, then the consent only of
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered
as one class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but
less than all, of such Tranches, then the consent only of the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the principal of,
or any installment of principal of or interest on (except as
provided in Section 312 hereof), any Security, or reduce the
principal amount thereof or the rate of interest thereon (or the
amount of any installment of interest thereon) or change the
method of calculating such rate or reduce any premium payable
upon the redemption thereof, or reduce the amount of the
principal of a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 802, or change the coin or currency (or other
property), 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
of any Security (or, in the case of redemption, on or after the
Redemption Date), without, in any such case, the consent of the
Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of this
Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders of each
Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of any
series, or any Tranche thereof, or except to increase the
percentages in principal amount referred to in this Section or
such other Sections or to provide that 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, or the
deletion of this proviso, in accordance with the requirements of
Sections 911(b) and 1201(h).
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 of one or more Tranches thereof, or which modifies
the rights of the Holders of Securities of such series or Tranches
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 or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof. A waiver by a Holder of such Holder's
right to consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modi-
fications thereby of the trusts created by this Indenture, the Trus-
tee shall be entitled to receive, and (subject to Section 901) 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 obli-
gated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties, immunities or liabilities under
this Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article this Indenture shall be modified in accordance there-
with, and such supplemental indenture shall form a part of this In-
denture for all purposes; and every Holder of Securities theretofore
or thereafter authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this Article may
restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture
as theretofore in effect for all purposes.
SECTION 1205. 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 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof, authenticated
and delivered after the execution of any supplemental indenture pursuant
to this Article may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
of any series, or any Tranche thereof, 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 or
Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate pursuant to a Board Resolution as contemplated by Section
301, and not in an indenture supplemental hereto, additions to,
changes in or the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's Certificate, as
the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such additions,
changes or elimination were contained in a supplemental indenture
shall have been appropriately satisfied. Upon the acceptance thereof
by the Trustee, any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at any
time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given
or taken by Holders of Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at
such time and at such place in the Borough of Manhattan, The City of
New York, as the Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call
a meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company or by
the Holders of 33% in aggregate principal amount of all of such
series and Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such
series and Tranches in the amount above specified, as the case
may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as shall
be determined or approved by the Company, for such meeting and
may call such meeting for such purposes by giving notice thereof
as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof, shall
be valid without notice if the Holders of all Outstanding
Securities of such series or Tranches are present in person or by
proxy and if representatives of the Company and the Trustee are
present, or if notice is waived in writing before or after the
meeting by the Holders of all Outstanding Securities of such
series, or by such of them as are not present at the meeting in
person or by proxy, and by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, a Person shall be (a) a Holder of one or more Outstanding
Securities of such series or Tranches, or (b) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series or Tranches by such Holder
or Holders. The only Persons who shall be entitled to attend any
meeting of Holders of Securities of any series or Tranche shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any represen-
tatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called as
hereinbefore provided, considered as one class, shall constitute a
quorum for a meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Secu-
rities of such series and Tranches, considered as one class, shall
constitute a quorum. In the absence of a quorum within one hour of
the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series and
Tranches, be dissolved. In any other case the meeting may be
adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of
a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such adjourned
meeting. Except as provided by Section 1305(e), notice of the
reconvening of any meeting adjourned for more than 30 days shall be
given as provided in Section 1302(a) not less than 10 days prior to
the date on which the meeting is scheduled to be reconvened. Notice
of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the
Outstanding Securities of such series and Tranches which shall
constitute a quorum.
Except as limited by Section 1202, any resolution pre-
sented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of the series and Tranches with respect to
which such meeting shall have been called, considered as one class;
provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be
taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such
series and Tranches, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this Section
shall be binding on all the Holders of Securities of the series and
Tranches with respect to which such meeting shall have been held,
whether or not present or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted by
law, any such proxy shall remain in effect and be binding upon
any future Holder of the Securities with respect to which it was
given unless and until specifically revoked by the Holder or
future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities in
regard to proof of the holding of such Securities and of the
appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified
in Section 104. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section
104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders as provided
in Section 1302(b), in which case the Company or the Holders of
Securities of the series and Tranches calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of Securities
held or represented by him; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the
signatures of the Holders or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Secu-
rities, of the series and Tranches with respect to which the meeting
shall have been called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolu-
tion and who shall make and file with the secretary of the meeting
their verified written reports of all votes cast at the meeting. A
record of the proceedings of each meeting of Holders shall be pre-
pared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in
Section 1302 and, if applicable, Section 1304. Each copy shall be
signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to the
Company, and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action may
be made, given or taken by Holders by written instruments as provided
in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented
thereby, or upon any obligation, covenant or agreement under this
Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any
predecessor or successor Corporation (either directly or through the
Company or a predecessor or successor Corporation), whether by virtue
of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
Corporation, either directly or indirectly through the Company or any
predecessor or successor Corporation, because of the indebtedness
hereby authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in any of the
Securities or to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of
this Indenture and the issuance of the Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of the Securities of each
series, by its acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and premium, if any, and
interest, if any, on each and all of the Securities is hereby
expressly subordinated, to the extent and in the manner set forth in
this Article, in right of payment to the prior payment in full of all
Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its behalf
to take such action as may be necessary or appropriate to effectuate
the subordination as provided in this Article, and appoints the
Trustee its attorney-in-fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation, reorganization or other
similar proceedings in respect of the Company or a substantial part
of its property, or of any proceedings for liquidation, dissolution
or other winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions of Section
1503, that (i) a default shall have occurred with respect to the
payment of principal of or interest on or other monetary amounts due
and payable on any Senior Indebtedness, or (ii) there shall have
occurred a default (other than a default in the payment of principal
or interest or other monetary amounts due and payable) in respect of
any Senior Indebtedness, as defined therein or in the instrument
under which the same is outstanding, permitting the holder or holders
thereof to accelerate the maturity thereof (with notice or lapse of
time, or both), such default shall have continued beyond the period
of grace, if any, in respect thereof, and, in the cases of subclauses
(i) and (ii) of this clause (b), such default shall not have been
cured or waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest on the Securities of any series
shall have been declared due and payable pursuant to Section 801 and
such declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full amount due
thereon, or provision shall be made for such payment in
money or money's worth, before the Holders of any of the
Securities are entitled to receive a payment on account of
the principal of, premium, if any, or interest on the
indebtedness evidenced by the Securities, including, without
limitation, any payments made pursuant to Articles Four and
Five;
(2) any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, to which any Holder or the Trustee
would be entitled except for the provisions of this Article,
shall be paid or delivered by the person making such payment
or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders
of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor)
to the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of the
indebtedness evidenced by the Securities or to the Trustee
under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property
or securities, in respect of principal of or interest on the
Securities or in connection with any repurchase by the
Company of the Securities, shall be received by the Trustee
or any Holder before all Senior Indebtedness is paid in
full, or provision is made for such payment in money or
money's worth, such payment or distribution in respect of
principal of or interest on the Securities or in connection
with any repurchase by the Company of the Securities shall
be paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment
of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution (or
provision therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after the
123rd day following the date of deposit of cash or Eligible
Obligations pursuant to Section 701 (provided all conditions set out
in such Section shall have been satisfied), the funds so deposited
and any interest thereon will not be subject to any rights of holders
of Senior Indebtedness including, without limitation, those arising
under this Article Fifteen; provided that no event described in
clauses (d) and (e) of Section 801 with respect to the Company has
occurred during such 123-day period.
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of
the Company or any other Corporation provided for by a plan or
reorganization or readjustment which are subordinate in right of
payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into,
another Corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another Corporation upon the
terms and conditions provided for in Article Eleven hereof shall not
be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 1502 if such other Corporation
shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on or
perform any other obligation in respect of Senior Indebtedness, other
than any indebtedness incurred by the Company or assumed or
guaranteed, directly or indirectly, by the Company for money borrowed
(or any deferral, renewal, extension or refunding thereof) or any
other obligation as to which the provisions of this Section shall
have been waived by the Company in the instrument or instruments by
which the Company incurred, assumed, guaranteed or otherwise created
such indebtedness or obligation, shall not be deemed a default under
clause (b) of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation and (ii)
either (A) no final judgment relating to such dispute shall have been
issued against the Company which is in full force and effect and is
not subject to further review, including a judgment that has become
final by reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event that a
judgment that is subject to further review or appeal has been issued,
the Company shall in good faith be prosecuting an appeal or other
proceeding for review and a stay or execution shall have been
obtained pending such appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have been
paid in full unless the holders thereof shall have received cash (or
securities or other property satisfactory to such holders) in full
payment of such Senior Indebtedness then outstanding. Upon the
payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the holders of Senior
Indebtedness to receive any further payments or distributions of
cash, property or securities of the Company applicable to the holders
of the Senior Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions of cash,
property or securities received by the Holders of the Securities, by
reason of such subrogation, which otherwise would be paid or
distributed to the holders of such Senior Indebtedness shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment by the
Company to or on account of Senior Indebtedness, it being understood
that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders, on the
one hand, and the holders of the Senior Indebtedness, on the other
hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the principal of
and interest on the Securities as and when the same shall become due
and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the
Company other than the holders of Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness in respect of
cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets or securities
of the Company referred to in this Article, the Trustee and the
Holders shall be entitled to rely upon any order or decree of a court
of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending for the purpose
of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon, and all other
facts pertinent thereto or to this Article.
SECTION 1506. Priority of Senior Indebtedness Upon Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise, all matured
principal of Senior Indebtedness and interest and premium, if any,
thereon shall first be paid in full before any payment of principal
or premium or interest, if any, is made upon the Securities or before
any Securities can be acquired by the Company or any sinking fund
payment is made with respect to the Securities (except that required
sinking fund payments may be reduced by Securities acquired before
such maturity of such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set forth in
this Article with respect to any Senior Indebtedness at any time held
by it, to the same extent as any other holder of Senior Indebtedness.
Nothing in this Article shall deprive the Trustee of any of its
rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate Subordination.
Notwithstanding the provisions of this Article or any
other provision of the Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts which would prohibit the
making of any payment of moneys to or by the Trustee unless and until
the Trustee shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior Indebtedness or
from any representative or representatives of such holder and, prior
to the receipt of any such written notice, the Trustee shall be
entitled, subject to Section 901, in all respects to assume that no
such facts exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms hereof any
such moneys may become payable for any purpose, or in the event of
the execution of an instrument pursuant to Section 702 acknowledging
satisfaction and discharge of this Indenture, then if prior to the
second Business Day preceding the date of such execution, the Trustee
shall not have received with respect to such moneys the notice
provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee may, in its discretion, receive
such moneys and/or apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary,
which may be received by it on or after such date; provided, however,
that no such application shall affect the obligations under this
Article of the persons receiving such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment of the
principal of and premium, if any, and interest, if any, on the
Securities, at any time or from time to time and in their absolute
discretion, agree with the Company to change the manner, place or
terms of payment, change or extend the time of payment of, or renew
or alter, any Senior Indebtedness, or amend or supplement any
instrument pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their rights under
the Senior Indebtedness including, without limitation, the waiver of
default thereunder, all without notice to or assent from the Holders
or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and objectives as are specifically set forth in this
Indenture, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness, and shall not
be liable to any such holders if it shall mistakenly pay over or
deliver to the Holders or the Company or any other Person, money or
assets to which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in such
case (unless the context shall otherwise require) be construed as
extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided,
however, that Sections 1507, 1508 and 1510 shall not apply to the
Company if it acts as Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
SECTION 1513. Effect of Subordination Provisions; Termination.
Notwithstanding anything contained herein to the contrary, other
than as provided in the immediately succeeding sentence, all the provisions
of this Indenture shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by the Company
shall not be deemed to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
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.
[SEAL] FLORIDA POWER & LIGHT COMPANY
By:
Dilek Samil
Treasurer and Assistant Secretary
ATTEST:
Paul R. Sutherland
Assistant Treasurer and
Assistant Secretary
[SEAL] THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), TRUSTEE
By:
Valerie Dunbar
Vice President
ATTEST:
Shiek Wiltshire
Assistant Secretary
State of New York
County of New York ss.:
On the 10th day of November, in the year 1995, before me
personally came Dilek Samil, to me known, who, being by me duly
sworn, did depose and say that she is the Treasurer and Assistant
Secretary, of Florida Power & Light Company, one of the corporations
described in and which executed the above instrument; that she 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 she
signed her name thereto by like authority.
Lee T. Barnum
Notary Public, State of New York
Commission No. 01BA5037193
Qualified in New York County
My Commission Expires December 19, 1996
State of New York
County of New York ss.:
On the 9th day of November, in the year 1995, before me
personally came Valerie Dunbar, to me known, who, being by me duly
sworn, did depose and say that she is a Vice President of The Chase
Manhattan Bank (National Association), one of the corporations
described in and which executed the above instrument; that she 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 she
signed her name thereto by like auhtority.
Margaret M. Price
Notary Public, State of New York
Commission No. 24-4980599
Qualified in Kings County
My Commission Expires April 22, 1997