PSI ENERGY, INC.
AND
THE FIFTH THIRD BANK, Trustee
Indenture
Dated as of November 15, 1996
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
Section 311(a) 613
(b) 613
Section 312(a) 701
702
(b) 702
(c) 702
Section 313(a) 703
(b) 703
(c) 703
(d) 703
Section 314(a) 704
(a)(4) 101
1004
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
Section 316(a) 101
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 107
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture
PSI ENERGY, INC.
Indenture
Dated as of November 15, 1996
TABLE OF CONTENTS
Parties 8
Recitals of the Company 8
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions:
Act 9
Affiliate; control 9
Authenticating Agent 9
Board of Directors 9
Board Resolution 9
Business Day 9
Commission 9
Company 9
Company Request; Company Order 10
Corporate Trust Office 10
corporation 10
Covenant Defeasance 10
Defaulted Interest 10
Defeasance 10
Depositary 10
Event of Default 10
Exchange Act 10
Expiration Date 10
Global Security 10
Holder 10
Indenture 10
interest 11
Interest Payment Date 11
Investment Company Act 11
Junior Subordinated Securities 11
Maturity 11
Notice of Default 11
Officers' Certificate 11
Opinion of Counsel 11
Original Issue Discount Security 11
Outstanding 11
Paying Agent 12
Person 13
Place of Payment 13
Predecessor Security 13
Redemption Date 13
Redemption Price 13
Regular Record Date 13
Responsible Officer 13
Securities 13
Securities Act 13
Security Register; Security Registrar 13
Senior Debt 14
Special Record Date 14
Stated Maturity 14
Subsidiary 14
Trust Indenture Act 14
Trustee 14
U.S. Government Obligation 14
Vice President 15
Section 102. Compliance Certificates and Opinions 15
Section 103. Form of Documents Delivered to Trustee 15
Section 104. Acts of Holders; Record Dates 16
Section 105. Notices, Etc., to Trustee and Company 18
Section 106. Notice to Holders; Waiver 19
Section 107. Conflict with Trust Indenture Act 19
Section 108. Effect of Headings and Table of Contents 19
Section 109. Successors and Assigns 19
Section 110. Separability Clause 20
Section 111. Benefits of Indenture 20
Section 112. Governing Law 20
Section 113. Legal Holidays 20
Section 114. Certain Matters Relating to Currencies 20
Section 115. Immunity of Incorporators, Stockholders, Officers
and Directors 21
Section 116. Counterparts 21
Section 117. Assignment to Subsidiary 21
ARTICLE TWO
0Security Forms
Section 201. Forms Generally 22
Section 202. Form of Face of Security 22
Section 203. Form of Reverse of Security 25
Section 204. Form of Legend for Global Securities 29
Section 205. Form of Trustee's Certificate of Authentication
29
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series 30
Section 302. Denominations 33
Section 303. Execution, Authentication, Delivery and Dating
33
Section 304. Temporary Securities 35
Section 305. Registration, Registration of Transfer and
Exchange 35
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
37
Section 307. Payment of Interest; Interest Rights Preserved
38
Section 308. Persons Deemed Owners 39
Section 309. Cancellation 40
Section 310. Computation of Interest 40
Section 311. CUSIP Number 40
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture 41
Section 402. Application of Trust Money 42
ARTICLE FIVE
Remedies
Section 501. Events of Default 42
Section 502. Acceleration of Maturity; Rescission and
Annulment 43
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee 44
Section 504. Trustee May File Proofs of Claim 45
Section 505. Trustee May Enforce Claims Without Possession
of Securities 46
Section 506. Application of Money Collected 46
Section 507. Limitation on Suits 46
Section 508. Unconditional Right of Holders to Receive
Principal,
Premium and Interest 47
Section 509. Restoration of Rights and Remedies 47
Section 510. Rights and Remedies Cumulative 48
Section 511. Delay or Omission Not Waiver 48
Section 512. Control by Holders 48
Section 513. Waiver of Past Defaults 48
Section 514. Undertaking for Costs 49
Section 515. Waiver of Usury, Stay or Extension Laws 49
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities 50
Section 602. Notice of Defaults 50
Section 603. Certain Rights of Trustee 50
Section 604. Not Responsible for Recitals or Issuance of
Securities 51
Section 605. May Hold Securities 52
Section 606. Money Held in Trust 52
Section 607. Compensation and Reimbursement 52
Section 608. Conflicting Interests 53
Section 609. Corporate Trustee Required; Eligibility 53
Section 610. Resignation and Removal; Appointment of Successor
53
Section 611. Acceptance of Appointment by Successor 55
Section 612. Merger, Conversion, Consolidation or Succession
to Business. 56
Section 613. Preferential Collection of Claims Against Company
57
Section 614. Appointment of Authenticating Agent 57
Section 615. Indemnification 59
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses
of Holders 59
Section 702. Preservation of Information; Communications
to Holders 60
Section 703. Reports by Trustee 60
Section 704. Reports by Company 61
ARTICLE EIGHT
Consolidation, Merger and Sale
Section 801. Consolidation and Mergers Permitted. 61
Section 802. Rights and Duties of Successor Company 61
Section 803. Opinion of Counsel 62
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of
Holders 62
Section 902. Supplemental Indentures With Consent of Holders
64
Section 903. Execution of Supplemental Indentures 65
Section 904. Effect of Supplemental Indentures 66
Section 905. Conformity with Trust Indenture Act 66
Section 906. Reference in Securities to Supplemental
Indentures 66
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest 66
Section 1002. Maintenance of Office or Agency 66
Section 1003. Money for Securities Payments to Be Held in Trust
67
Section 1004. Statement by Officers as to Default 68
Section 1005. Maintenance of Properties 68
Section 1006. Payment of Taxes and Other Claims 69
Section 1007. Waiver of Certain Covenants 69
Section 1008. Calculation of Original Issue Discount 69
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article 70
Section 1102. Election to Redeem; Notice to Trustee 70
Section 1103. Selection by Trustee of Securities to Be Redeemed
70
Section 1104. Notice of Redemption 71
Section 1105. Deposit of Redemption Price 72
Section 1106. Securities Payable on Redemption Date 72
Section 1107. Securities Redeemed in Part 72
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article 73
Section 1202. Satisfaction of Sinking Fund Payments with
Securities 73
Section 1203. Redemption of Securities for Sinking Fund 74
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance 74
Section 1302. Defeasance and Discharge 74
Section 1303. Covenant Defeasance 75
Section 1304. Conditions to Defeasance or Covenant Defeasance
75
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions
78
Section 1306. Reinstatement 79
ARTICLE FOURTEEN
Junior Subordinated Securities
Section 1401. Certain Securities Subordinate to Senior Debt
79
Section 1402. Payment Over of Proceeds Upon Default 80
Section 1403. Payment Over of Proceeds Upon Dissolution, Etc
80
Section 1404. Subrogation to Rights of Holders of Senior Debt
81
Section 1405. Trustee to Effectuate Subordination 83
Section 1406. Notice to Trustee 83
Section 1407. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights 84
Section 1408. No Waiver of Subordination Provisions 84
Testimonium 85
Signatures 85
INDENTURE, dated as of November 15, 1996, between PSI
Energy, Inc., a corporation duly organized and existing under the
laws of the State of Indiana (herein called the "Company"),
having its principal office at 1000 East Main Street, Plainfield,
Indiana 46168, and The Fifth Third Bank, an Ohio banking
corporation, as Trustee (herein called the "Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in
one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, subject
to Article Fourteen, if applicable, for the equal and
proportionate benefit of the Holders of the Securities of each
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles;
(4) unless the context otherwise requires, any reference to fan
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 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 indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means the board of directors of the Company,
or any duly authorized committee of that board, or any Person
duly authorized to act on behalf of that board.
"Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to
close.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if
at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing
such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company either by (i) its
Chairman of the Board, its Vice Chairman, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the
Trustee, or (ii) any two Persons designated in a Board
Resolution, or in a Company Order previously delivered to the
Trustee signed by any two of the foregoing, and delivered to the
Trustee.
"Corporate Trust Office" means the office of the Trustee for
Securities of any series at which at any particular time its
corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is
located at 38 Fountain Square Plaza, Cincinnati, Ohio.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section
307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act
that is designated to act as Depositary for such Securities as
contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time
to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or
part of the Securities of any series and bears the legend set
forth in Section 204 (or such legend as may be specified as
contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of
the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by
Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Investment Company Act" means the Investment Company Act of
1940 and any statute successor thereto, in each case as amended
from time to time.
"Junior Subordinated Securities" shall have the meaning
specified in Section 1401.
"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 therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(4).
"Officers' Certificate" means a certificate signed in the
same manner and by Persons as provided for in a Company Requestor
a Company Order, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be an employee of or counsel for the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Securities as to which Defeasance has been
effected pursuant to Section 1302; and
(4) 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 that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations
of the Company; provided, however, that in determining whether
the Holders of the requisite principal amount of the Outstanding
Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action
hereunder as of any date, (A) the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due
and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) if, as of such
date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the
amount as specified or determined as contemplated by Section 301,
(C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by Section 301,
of the principal amount of such Security (or, in the case of a
Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned
by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the
Trustee actually knows to be so owned shall be so disregarded.
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.
"Paying Agent" means, if not the Company, then any Person
authorized by the Company to pay the principal of or any premium
or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of
and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
"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
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"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.
"Responsible Officer", when used with respect to the
Trustee, means any vice president, any assistant vice-president,
any trust officer or assistant trust officer of the Trustee
assigned to the Trustee's corporate trust department and
customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to
time.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" of the Company means the principal of,
premium, if any, interest on and any other payment due pursuant
to any of the following, whether outstanding at the date of
execution of this Indenture or thereafter incurred, created or
assumed: (a) all indebtedness of the Company evidenced by notes,
debentures, bonds or other securities sold by the Company for
money, excluding Junior Subordinated Securities, but including
all first mortgage bonds of the Company outstanding from time to
time; (b) all indebtedness of others of the kinds described in
the preceding clause (a) assumed by or guaranteed in any manner
by the Company, including through an agreement to purchase,
contingent or otherwise; and (c) all renewals, extensions or
refundings of indebtedness of the kinds described in any of the
preceding clauses (a) and (b); unless, in the case of any
particular indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness,
renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Junior Subordinated
Securities.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means
the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal
or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title
"vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include,
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(3) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or
taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making
of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant
series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of
no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to join in the giving or making of (i) any Notice
of Default, (ii) any declaration of acceleration referred to in
Section 502, (iii) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this
Section, the party hereto which sets such record date may
designate any day as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is
not designated with respect to any record date set pursuant to
this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record
date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal
amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in
writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, to each
Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for
the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other
Holders. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where
this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act which is required under
such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder, the Holders, and the holders of any
Senior Debt, 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 law of the State of New York,
without regard to conflicts of laws principles thereof.
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 of
any Security which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day
at such Place of Payment with the same force and effect as if
made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to
such next succeeding Business Day.
Section 114. Certain Matters Relating to Currencies.
Whenever any action or Act is to be taken hereunder by the
Holders of Securities denominated in different currencies or
currency units, then for purposes of determining the principal
amount of Securities held by such Holders, the aggregate
principal amount of the Securities denominated in a foreign
currency or currency unit shall be deemed to be that amount of
Dollars that could be obtained for such principal amount on the
basis of a spot exchange rate specified to the Trustee for such
series in an Officers' Certificate for exchanging such foreign
currency or currency unit into Dollars as of the date of the
taking of such action or Act by the Holders of the requisite
percentage in principal amount of the Securities.
The Trustee shall segregate moneys, funds and accounts held
by the Trustee in one currency or currency unit from any moneys,
funds or accounts held in any other currencies or currency units,
notwithstanding any provision herein that would otherwise permit
the Trustee to commingle such amounts.
Section 115. Immunity of Incorporators, Stockholders, Officers
and Directors.
No recourse shall be had for the payment of the principal of
(and premium, if any), or the interest, if any, on any Securities
of any series, or for any claim based thereon, or upon any
obligation, covenant or agreement of this Indenture, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or
any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment of
penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities of each series are
solely corporate obligations, and that no personal liability
whatever shall attach to, or is incurred by, any incorporator,
stockholder, officer or director, past, present or future, of the
Company or of any successor corporation, either directly or
indirectly through the Company or any successor corporation,
because of the incurring 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 of any series, or to be implied herefrom or therefrom;
and that all such personal liability is hereby expressly released
and waived as a condition of, and as part of the consideration
for, the execution of this Indenture and the issuance of the
Securities of each series.
Section 116. Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
Section 117. Assignment to Affiliate.
The Company will have the right at all times to assign by
indenture supplemental hereto any of its rights or obligations
under the Indenture to a direct, indirect, or wholly owned
Affiliate of the Company; provided that, in the event of any such
assignment, the Company will remain liable for all such
obligations.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution thereof. If the form of Securities
of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and
the regulations thereunder.]
PSI ENERGY, INC.
.................................................................
....
No. .........
$ .............
CUSIP NO. _______
PSI Energy, Inc., a corporation duly organized and existing
under the laws of the state of Indiana (herein called the
"Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to
.............................................., or registered
assigns, the principal sum of
...................................... Dollars on
........................................................ [if the
Security is to bear interest prior to Maturity, insert: , and
to pay interest thereon from ............. or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, ................... on ............ and
............ in each year, commencing ........., at the rate of
....% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, which shall be the ....... or ....... (whether
or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert: The principal of this Security shall not bear interest
except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such
case the overdue principal and any overdue premium shall bear
interest at the rate of ....% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the
dates such amounts are due until they are paid or made available
for payment. Interest on any overdue principal or premium shall
be payable on demand. Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the
rate of ......% per annum (to the extent that the payment of such
interest on interest shall be legally enforceable), from the date
of such demand until the amount so demanded is paid or made
available for payment. Interest on any overdue interest shall be
payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert: any such] interest on this Security will be
made at the office or agency of the Company maintained for that
purpose in ............, in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert:
;provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security
Register].
Any payment on this Security due on any day which is not a
Business Day in the City of New York need not be made on such
day, but may be made on the next succeeding Business Day with the
same force and effect as if made on the due date and no interest
shall accrue for the period from and after such date.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, [if subordinated,
insert: including, without limitation, provisions subordinating
the payment of the principal hereof and any premium and interest
hereon to the payment in full of all Senior Debt as defined in
the Indenture] which such further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
In Witness Whereof, the Company has caused this instrument
to be duly executed.
PSI ENERGY, INC.
By...............................................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of , 1996 (herein called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and The Fifth Third Bank,
as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated
and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert: , limited in aggregate
principal amount to $...........].
[If applicable, insert: The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
[if applicable, insert: (1) on ........... in any year
commencing with the year ...... and ending with the year ......
through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)]
at any time [if applicable, insert: on or after ..........,
19..], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert: on or
before ..............., ...%, and if redeemed] during the
12-month period beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemption [if
applicable, insert: (whether through operation of the sinking
fund or otherwise)] with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert: The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
(1) on ............ in any year commencing with the year .... and
ending with the year .... through operation of the sinking fund
for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any
time [if applicable, insert: on or after ............], as a
whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the
12-month period beginning ............ of the years indicated,
Redemption Price For Redemption
Price For
Redemption Through Redemption
Otherwise Than
Operation of the Through
Operation of the
Year Sinking Fund
Sinking Fund
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert: Notwithstanding the foregoing, the
Company may not, prior to ............., redeem any Securities of
this series as contemplated by [if applicable, insert: Clause
(2) of] the preceding paragraph as a part of, or in anticipation
of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted
financial practice) of less than .....% per annum.]
[If applicable, insert: The sinking fund for this series
provides for the redemption on ............ in each year
beginning with the year ....... and ending with the year ......
of [if applicable, insert: not less than $..........
("mandatory sinking fund") and not more than] $.........
aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company
otherwise than through [if applicable, insert: mandatory]
sinking fund payments may be credited against subsequent [if
applicable, insert: mandatory] sinking fund payments otherwise
required to be made [if applicable, insert: , in the inverse
order in which they become due].]
[If the Security is subject to redemption of any kind, insert:
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
[If subordinated, insert: The indebtedness evidenced by the
Securities of this series is, to the extent and in the manner
provided in the Indenture, expressly subordinate and subject in
right of payment to the prior payment in full of all Senior Debt
of the Company (as defined in the Indenture) whether outstanding
at the date of the Indenture or thereafter incurred, and this
Security is issued subject to the provisions of the Indenture
with respect to such subordination. Each holder and owner of
this Security, by accepting the same, agrees to and shall be
bound by such provisions and authorizes the Trustee in his behalf
to take such action as may be necessary or appropriate to
effectuate the subordination so provided and appoints the Trustee
his attorney-in-fact for such purpose.]
[If applicable, insert: The Indenture contains provisions
for defeasance at any time of [the entire indebtedness of this
Security] [or] [certain restrictive covenants and Events of
Default with respect to this Security] [, in each case] upon
compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert: If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,
insert: If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of principal
of the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture. Such
amount shall be equal to insert: formula for determining the
amount. Upon payment (i) of the amount of principal so declared
due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the
Company's obligations in respect of the payment of the principal
of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
a majority in principal amount of the Securities of each series
at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than 35% in principal amount of the Securities of this series at
the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably
satisfactory to the Trustee, and the Trustee shall not have
received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $....... and
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301
for the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear a legend in
substantially the following form (or such other form as a
securities exchange or Depositary may request or require):
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee thereof. This Security may not be
exchanged in whole or in part for a Security registered, and no
transfer of this Security in whole or in part may be registered,
in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the
Indenture.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK,
As Trustee
By.........................................
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and,
subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities
of any other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than 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;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the
series shall bear interest, if any, the date or dates from which
any such interest shall accrue, the Interest Payment Dates on
which any such interest shall be payable, the manner of
determination of such Interest Payment Dates and the Regular
Record Date for any such interest payable on any Interest Payment
Date;
(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
(7) the place or places where the principal of and any
premium and interest on any Securities of the series shall be
payable;
(8) the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part, at
the option of the Company and, if other than by a Board
Resolution, the manner in which any election by the Company to
redeem the Securities shall be evidenced;
(9) the obligation, if any, of the Company to redeem
or purchase any Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of the Holder
thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(10) the denominations in which any Securities of the
series shall be issuable;
(11) if the amount of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;
(12) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(13) if the principal of or any premium or interest on
any Securities of the series is to be payable, at the election of
the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable
(or the manner in which such amount shall be determined);
(14) if other than the entire principal amount thereof,
the portion of the principal amount of any Securities of the
series which shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 502;
(15) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be determinable
as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be
determined);
(16) if applicable, that the Securities of the series,
in whole or any specified part, shall be defeasible pursuant to
Section 1302 or Section 1303 or both such Sections;
(17) if applicable, that any Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends
which shall be borne by any such Global Security in addition to
or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in
Clause (2) of the last paragraph of Section 305 in which any
such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security
in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a
nominee thereof;
(18) any addition to or change in the Events of Default
which applies to any Securities of the series and any change in
the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and
payable pursuant to Section 502;
(19) any addition to or change in the covenants set
forth in Article Ten which applies to Securities of the series;
(20) the applicability of, or any addition to or change
in, Article Fourteen with respect to the Securities of a series;
(21) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture.
All Securities of any one series shall be substantially
identical except as to date and principal amount and except as
may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as
shall be specified as contemplated by Section 301. In the absence
of any such specified denomination with respect to the Securities
of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman, its President, one
of its Vice Presidents, or its Treasurer. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities. If the form or terms of the Securities
of the series have been established by or pursuant to a Board
Resolution as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been
established by or pursuant to Board Resolution as permitted
by Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted
by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights to general equity principles and to such
other matters as such counsel shall set forth therein.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents
(with appropriate variations to reflect such future issuance) are
delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section
309, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one
or more definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and
tenor.
Section 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in
such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to
as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security
of a series at the office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made 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, 906 or 1107 not involving any
transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall
not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at
the opening of business 15 days before the day of the mailing of
a notice of redemption of any such Securities selected for
redemption under Section 1103 and ending at the close of business
on the day of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being
redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary
designated for such Global Security or a nominee thereof and
delivered to such Depositary or nominee thereof or custodian
therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or
in part for Securities registered, and no transfer of a
Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling
or unable to continue as Depositary for such Global Security
or (ii) has ceased to be a clearing agency registered under
the Exchange Act, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global
Security or (C) there shall exist such circumstances, if
any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of
a Global Security for other Securities may be made in whole
or in part, and all Securities issued in exchange for a
Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security
shall direct.
(4) Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in
lieu of, a Global Security or any portion thereof, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form
of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary
for such Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section 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.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of
Securities of such series in the manner set forth in Section
106, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to
Section 307) any interest 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.
None of the Company, the Trustee, any Paying Agent (if not
the Company) or the Security Registrar shall have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee
(or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of as directed by a Company
Order; provided, however, that the Trustee shall not be required
to destroy such cancelled Securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series,
interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee may
use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either (A) all Securities theretofore
authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or (B) all
such Securities not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, or (ii)
will become due and payable at their Stated Maturity within
one year, or (iii) are to be called for redemption
within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose, money in an amount
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest
to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 607, the obligations of the Company to any Authenticating
Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003 and to Article Fourteen, if applicable, all money deposited
with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest
for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon
any Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or
any premium on any Security of that series at its Maturity;
or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that
series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of a series of Securities
other than that series), and continuance of such default or
breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders
of at least 35% in principal amount of the Outstanding
Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in
the premises of (A) a decree or order for relief in respect
of the Company in an involuntary case or proceeding under
any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(6) the commencement by the Company of a
voluntary case or proceeding under any applicable Federal
or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable
Federal or state law, or the consent by it to the filing of
such petition or to the appointment of, or taking possession
of the Company or of any substantial part of its property
by, a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official or the making by the
Company 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 taking of
corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default established
pursuant to Section 301 with respect to Securities of that
series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(5) or 501(6)) with respect to Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 35% in principal amount of the Outstanding Securities of
that series may declare the principal amount of all the
Securities of that series (or, if any Securities of that series
are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the
terms thereof) to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of
Default specified in Section 501(5) or 501(6) with respect to
Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without
any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if,
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay (A) all overdue interest
on all Securities of that series, (B) the principal of (and
premium, if any, on) any Securities of that series which
have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities, (C) all sums paid
or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to
Securities of that series, other than the non-payment of the
principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and any premium
and interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, 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 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the 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;
provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar
committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article,
subject to Article Fourteen, if applicable, shall be applied in
the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the
Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607; and
Second: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities
for principal and any premium and interest, respectively
Third: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of not less than 35% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or
by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of
such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on
the respective Stated 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 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities
of such series, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 513. 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
(1) in the payment of the principal of or any
premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 514. Undertaking for Costs.
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, a court may require
any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that this Section shall not apply to any
suit instituted by the Trustee or to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of Outstanding Securities (of any
series), or to any suit instituted by a Holder for the
enforcement of the payment of the principal of or any premium or
interest on any Security on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Usury, 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
usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the
foregoing, 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. 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 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of
such series notice of such default as and to the extent provided
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 501(4) with respect
to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, and any resolution of the
Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit.
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing
with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation as shall be agreed to in writing between the
Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing
it or any predecessor Trustee pursuant to this Section 607,
except with respect to funds held in trust for the benefit of the
Holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5)
or Section 501(6), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. To the extent permitted
by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee
hereunder with respect to the Securities of each series, which
may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority,
then for the purposes of this Section and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of
Sectionr 611.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 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.
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.
If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject
to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or
Trustees.
If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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 to all Holders of Securities of
such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in the first or second
preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any
such other obligor). For purposes of Section 311(b) (4) and (6)
of the Trust Indenture Act, the following terms shall mean:
(a) "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; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 614. Appointment of Authenticating Agent.
From time to time the Trustee may appoint one or more
Authenticating Agents with respect to one or more series of
Securities, which may include the Company or any of its
Affiliates, with power to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue
and upon 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 of America, any State thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. 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 Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
Section 615. Indemnification.
The Company agrees to indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense incurred by it,
arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder or the
performance of its duties hereunder or under any related
document, including the reasonable costs and expenses of
defending itself against or investigating any claim or liability
with respect to the Securities, except to the extent that any
such loss, liability or expense was due to its own negligence or
bad faith. The Company need not pay for any settlement made
without its consent. The obligations of the Company to the
Trustee under this Section shall survive the satisfaction and
discharge of this Indenture and payment in full and/or retirement
of the Securities.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(1) on each Regular Record Date, a list, in such
form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series as of
such Regular Record Date, and
(2) at such other times as the Trustee may
request in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, that if and
so long as the Trustee shall be the Security Registrar, no
such list need be furnished.
Section 702. Preservation of Information; Communications to
Holders.
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list as provided in Section 701 and
the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new
list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this
Indenture deliver to Holders a brief report, dated as of such May
15, which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the
Commission and with the Company.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger and Sale
Section 801. Consolidations and Mergers Permitted.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether
or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any
such consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all
series in accordance with the terms of each series, according to
their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series
to be kept or performed by the Company, shall be expressly
assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act as then in effect)
satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which
the Company shall have been merged, or by the entity which shall
have acquired such property.
Section 802. Rights and Duties of Successor Company.
In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of, premium, if
any, and interest on all of the Securities of all series
outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture or established with
respect to each series of the Securities to be performed by the
Company with respect to each series, such successor corporation
shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the
first part, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture
and the Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company or any other predecessor obligor on the
Securities, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor
company, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which
previously shall have been signed and delivered by the officers
of the predecessor Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued
at the date of the execution hereof.
Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated
with the Company).
Section 803. Opinion of Counsel.
The Trustee may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person
to the Company to the assumption by any such successor of
the covenants of the Company herein and in the Securities
pursuant to Article Eight or Section 117; or
(2) to add to the covenants of the Company for
the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit
of less than all series of Securities, stating that such
covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power
herein conferred upon the Company; provided, however, that
in respect of any such additional covenant, such
supplemental indenture may provide for a particular period
of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such
default or may limit the right of the Holders of a majority
in aggregate principal amount of the Securities of such
series to waive such default;
(3) to add any additional Events of Default for
the benefit of the Holders of all or any series of
Securities (and if such additional Events of Default are to
be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly
being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate
the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more
series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of
such provision nor (ii) modify the rights of the Holder of
any such Security with respect to such provision or (B)
shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities
of any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by one or more successor Trustees,
pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions
arising under this Indenture, provided that such action
pursuant to this Clause (9) shall not adversely affect the
interests of the Holders of Securities of any series in any
material respect.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations which may be
therein contained.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of
Section 902.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, 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 or of modifying in any
manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest
thereon is payable, affect the applicability of Article
Fourteen to any Security, or impair the right to institute
suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or
(2) reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1007, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1007, or the deletion of
this proviso, in accordance with the requirements of
Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series;
provided that no such supplemental indenture shall modify any
provision of this Indenture so as to adversely affect the rights
of any holder of outstanding Senior Debt to the benefits of
Article Fourteen.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of and any premium and interest on the Securities of
that series in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before
each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, on or before each due date
of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during
the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums held in trust by such Paying Agent for payment in respect of
the Securities of that series.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of or any premium or interest on any Security of any
series and remaining unclaimed for 18 months after such
principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York,
New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the
date hereof, an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.
Section 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary.
Section 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
Section 1007. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301
for Securities of such series, the Company may, with respect to
the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series if before the time
for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
Section 1008. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end
of each calendar year a written notice specifying the amount of
original issue discount
(including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of such year.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by
Section 301 for such Securities) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or in another manner specified
as contemplated by Section 301 for such Securities. In case of
any redemption at the election of the Company the Company shall,
at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of a portion of the
principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If
less than all the Securities of such series are to be redeemed
(unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in case
of any Securities selected for partial redemption as aforesaid,
the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of the Redemption.
Notice of redemption shall be given by mail not less than 30
nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to
be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities
of any series consisting of more than a single Security are
to be redeemed, the identification (and, in the case of
partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if
less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption
Price will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where each such Security
is to be surrendered for payment of the Redemption Price,
and
(6) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense
of the Company and shall be irrevocable.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of
any other Security.
Section 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall
be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of
Section 307.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, however, that a Depositary
need not surrender a Global Security for a partial redemption and
may be authorized to make a notation on such Global Security of
such partial redemption. In the case of a partial redemption of
a Global Security, the Depositary, and in turn, the participants
in the Depositary, shall have the responsibility to select any
Securities to be redeemed by random lot.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of any series
except as otherwise specified as contemplated by Section 301 for
such Securities.
The minimum amount of any sinking fund payment provided for
by the terms of any Securities is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of such Securities
is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of
any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to
the redemption of Securities as provided for by the terms of such
Securities.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (2)
may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to any Securities of such
series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at
the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment
date for any Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting
Securities pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days
prior to each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section
1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated
in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have
Section 1302 or Section 1303 applied to any Securities or any
series of Securities, as the case may be, designated pursuant to
Section 301 as being defeasible pursuant to such Section 1302 or
1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions
set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of
Securities, as the case may be, the Company shall be deemed to
have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities
when payments are due, (2) the Company's obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance
with this Article, the Company may exercise its option (if any)
to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of
Securities, as the case may be, (1) the Company shall be released
from its obligations under Section 801(3), Sections 1005 through
1006, inclusive, and any covenants provided pursuant to Section
301(19), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in
Sections 501(4) (with respect to any of Section 801(3), Sections
1005 through 1006, inclusive, and any such covenants provided
pursuant to Section 301(19), 901(2) or 901(7)), and 501(7) shall
be deemed not to be or result in an Event of Default in each case
with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to
such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so
specified in the case of Section 501(4)) or Article Fourteen,
whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of
any reference in any such Section or Article to any other
provision herein or in any other document, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 1302 or Section 1303 to any Securities or any series of
Securities, as the case may be:
(1) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another
trustee which satisfies the requirements contemplated by
Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money
in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of
and any premium and interest on such Securities on the
respective Stated Maturities, in accordance with the terms
of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i)
a direct obligation of the United States of America for the
payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation of a
Person controlled or supervised by and acting as an
agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States
of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified
in Clause (x) above and held by such bank for the account of
the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal
or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section
1302 apply to any Securities or any series of Securities, as
the case may be, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (A) the Company
has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of
this instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to
Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(3) In the event of an election to have Section
1303 apply to any Securities or any series of Securities, as
the case may be, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders
of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance
were not to occur.
(4) The Company shall have delivered to the
Trustee an Officers' Certificate to the effect that neither
such Securities nor any other Securities of the same series,
if then listed on any securities exchange, will be delisted
as a result of such deposit.
(5) No event which is, or after notice or lapse
of time or both would become, an Event of Default with
respect to such Securities or any other Securities shall
have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections
501(5) and (6), at any time on or prior to the 90th day
after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until after
such 90th day).
(6) Such Defeasance or Covenant Defeasance shall
not cause the Trustee to have a conflicting interest within
the meaning of the Trust Indenture Act (assuming all
Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which
the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall
not result in the trust arising from such deposit
constituting an investment company within the meaning of the
Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default
in the payment of any principal of or premium or interest on
any Senior Debt shall have occurred and be continuing, (B)
no event of default with respect to any Senior Debt shall
have resulted in such Senior Debt becoming, and continuing
to be, due and payable prior to the date on which it would
otherwise have become due and payable (unless payment of
such Senior Debt has been made or duly provided for), and
(C) no other event of default with respect to any Senior
Debt shall have occurred and be continuing permitting (after
notice or lapse of time or both) the holders of such Senior
Debt (or a trustee on behalf of such holders) to declare
such Senior Debt due and payable prior to the date on which
it would otherwise have become due and payable.
(10) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent with respect to
such Defeasance or Covenant Defeasance have been complied
with.
Section 1305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 1306,
the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in
respect of any Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through
any such Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so
held in trust need not be segregated from other funds except to
the extent required by law.
Money and U.S. Government Obligations so held in trust shall
not be subject to the provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with
respect to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1302 or 1303 shall be
revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 1305 with respect to such
Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any
premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
ARTICLE FOURTEEN
Junior Subordinated Securities
Section 1401. Certain Securities Subordinate to Senior Debt.
As provided pursuant to Section 301 or in a supplemental
indenture, the Company may issue one or more series of Securities
subject to the provisions of this Article Fourteen, and each
Holder of a Security of a series so issued ("Junior Subordinated
Securities"), whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and
interest on all Junior Subordinated Securities issued with
respect to which this Article Fourteen applies shall, to the
extent and in the manner hereinafter set forth, be subordinate
and subject in right of payment to the prior payment in full of
all Senior Debt, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the
occurrence of any default or Event of Default hereunder.
Section 1402. Payment Over of Proceeds Upon Default.
In the event and during the continuation of any default in
the payment of principal, premium, interest or any other payment
due on any Senior Debt continuing beyond the period of grace, if
any, specified in the instrument evidencing such Senior Debt,
unless and until such default shall have been cured or waived or
shall have ceased to exist, or in the event that the maturity of
any Senior Debt has been accelerated because of a default, then
no payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, or
premium, if any, or interest on the Junior Subordinated
Securities.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any holder when such
payment is prohibited by the preceding paragraph of this Section
1402, such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt or
their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may
have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Debt (or their
representative or representatives or a trustee) notify the
Trustee within 90 days of such payment of the amounts then due
and owing on the Senior Debt and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Senior
Debt.
Section 1403. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any payment by the Company, or distribution of assets
of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become
due upon all Senior Debt shall first be paid in full, or payment
thereof provided for in money in accordance with its terms,
before any payment is made on account of the principal (and
premium, if any) or interest on the Junior Subordinated
Securities; and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of
the Junior Subordinated Securities or the Trustee would be
entitled, except for the provisions of this Article Fourteen,
shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making
such payment or distribution, or by the Holders of the Junior
Subordinated Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Debt
(pro rata to such holders on the basis of the respective amounts
of Senior Debt held by such holders, as calculated by the
Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Debt may have been issued, as
their respective interests may appear, to the extent necessary to
pay all Senior Debt in full, in money or money's worth, after
giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt, before any payment or distribution is
made to the holders of Junior Subordinated Securities or to the
Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee or the holders of
the Junior Subordinated Securities before all Senior Debt is paid
in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or
delivered to the holders of Senior Debt or their representative
or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior
Debt may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the
payment of all Senior Debt remaining unpaid to the extent
necessary to pay all Senior Debt in full in money in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Debt.
For purposes of this Article Fourteen, 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 of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
Fourteen with respect to the Junior Subordinated Securities to
the payment of all Senior Debt which may at the time be
outstanding; provided that (i) the Senior Debt is assumed by the
new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of the Senior
Debt are not, without the consent of such holders, altered by
such reorganization or readjustment. 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 Eight
hereof shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the proposes of this Section 1403 if such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in
Article Eight hereof. Nothing in Section 1402 or in this Section
1403 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 607.
Section 1404. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, the
rights of the holders of the Junior Subordinated Securities shall
be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities
of the Company applicable to the Senior Debt; and, for the
purposes of such subrogation, no payment or distributions to the
holders of the Senior Debt of any cash, property or securities to
which the holders of the Junior Subordinated Securities or the
Trustee would be entitled except for the provisions of this
Article Fourteen, and no payment over pursuant to the provisions
of this Article Fourteen, to or for the benefit of the holders of
Senior Debt by holders of the Junior Subordinated Securities or
the Trustee, shall, as between the Company, its creditors other
than holders of Senior Debt, and the Holders of the Junior
Subordinated Securities, be deemed to be a payment by the Company
to or on account of the Senior Debt. It is understood that the
provisions of this Article Fourteen are and are intended solely
for the purposes of defining the relative rights of the holders
of the Junior Subordinated Securities, on the one hand, and the
holders of the Senior Debt on the other hand.
Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in the Junior Subordinated Securities is
intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Debt, and the holders
of the Junior Subordinated Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the
holders of the Junior Subordinated Securities the principal of
(and premium, if any) and interest on the Junior Subordinated
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 of the Junior Subordinated
Securities and creditors of the Company other than the holders of
the Senior Debt, nor shall anything herein or therein prevent the
Trustee or the holder of any Junior Subordinated Security from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article Fourteen of the holders of Senior Debt 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 of the Company
referred to in this Article Fourteen, the Trustee, subject to the
provision of Article Six, and the Holders of the Junior
Subordinated Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the
Junior Subordinated Securities, for the purposes of ascertaining
the persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company,
the amount hereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or
to this Article Fourteen.
Section 1405. Trustee to Effectuate Subordination.
Each Holder of a Junior Subordinated Security by his acceptance
thereof authorizes and directs the Trustee in his behalf to take
such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fourteen and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 1406. Notice to Trustee.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company which would prohibit the making of any payment of monies
to or by the Trustee in respect of the Junior Subordinated
Securities pursuant to the provisions of this Article Fourteen.
Notwithstanding the provisions of this Article Fourteen or any
other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee
in respect of the Junior Subordinated Securities pursuant to the
provisions of this Article Fourteen, unless and until a
Responsible Officer of the Trustee shall have received written
notice thereof at the Principal Office of the Trustee from the
Company or a holder or holders of Senior Debt or from any trustee
therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Article Six, shall be
entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received
the notice provided for in this Section 1406 at least two
Business Days prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any)
or interest on any Junior Subordinated Security), then, anything
herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article Six, shall
be entitled to rely on the delivery to it of a written notice by
a person representing himself to be a holder of Senior Debt (or a
trustee on behalf of such holder) to establish that such notice
has been given by a holder of Senior Debt or a trustee on behalf
of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this
Article Fourteen, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such Person, the extent to which
such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
person under this Article Fourteen, and if such evidence is not
furnished the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to
receive such payment.
Section 1407. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Fourteen in respect of
any Senior Debt at any time held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607.
Section 1408. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt
to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from
time to time, without the consent of or notice to the Trustee or
the holders of the Junior Subordinated Securities, without
incurring responsibility to the holders of the Junior
Subordinated Securities and without impairing or releasing the
subordination provided in this Article or the obligations
hereunder of the holders of the Junior Subordinated Securities to
the holders of Senior Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior
Debt; (iii) release any person liable in any manner for the
collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other person.
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 as of the day and year first above
written.
PSI ENERGY, INC.
By /s/ William L. Sheafer
William L. Sheafer
Treasurer
THE FIFTH THIRD BANK
as Trustee
By /s/ Kerry R. Burne
Kerry R. Byrne
Vice President