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EXHIBIT (4)-3
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Consumers Power Company, Issuer
and
The Bank of New York, Trustee
INDENTURE
Dated as of November___, 1995
Subordinated Debt Securities
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CROSS REFERENCE SHEET
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Provisions of Trust Indenture Act of 1939 and Indenture to be
dated as of ____________, 1995 between Consumers Power Company and The
Bank of New York:
Section of the Act Section of Indenture
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310(a)(1) and (2)............. 6.9
310(a)(3) and (4)............. Inapplicable
310(b)........................ 6.8 and 6.10(a), (b) and (d)
310(c)........................ Inapplicable
311(a)........................ 6.13(a) and (c)(1) and (2)
311(b)........................ 6.13(b)
311(c)........................ Inapplicable
312(a)........................ 4.1 and 4.2(a)
312(b)........................ 4.2(a) and (b)(i) and (ii)
312(c)........................ 4.2(c)
313(a)........................ 4.4(a)
313(b)(1)..................... Inapplicable
313(b)(2)..................... 4.4(b)
313(c)........................ 4.4(c)
313(d)........................ 4.4(d)
314(a)........................ 4.3
314(b)........................ Inapplicable
314(c)(1) and (2)............. 13.5
314(c)(3)..................... Inapplicable
314(d)........................ Inapplicable
314(e)........................ 13.5
314(f)........................ Inapplicable
315(a), (c) and (d)........... 6.1
315(b)........................ 5.11
315(e)........................ 5.12
316(a)(1)..................... 5.9
316(a)(2)..................... Not required
316(a) (last sentence)........ 7.4
316(b)........................ 5.7
316(c)........................ Not required
317(a)........................ 5.2
317(b)........................ 3.4(a) and (b)
318(a)........................ 13.7
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* This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
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PARTIES.................................................... 1
RECITALS
Authorization of Indenture........................ 1
Compliance with Legal Requirements................ 1
Purpose of and Consideration for Indenture........ 1
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ARTICLE ONE
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consumers Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Holder", "Holder of Securities", "Securityholder" . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Preferred Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Security" or "Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Security Register" and "Security Registrar" . . . . . . . . . . . . . . . . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Trust Indenture Act of 1939" or "Trust Indenture Act" . . . . . . . . . . . . . . . . . . . 7
Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE TWO
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.4 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.5 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.6 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.7 Denomination of Securities; Payments of Interest . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . 19
Section 2.10 Cancellation of Securities; Destruction Thereof . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.12 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE THREE
COVENANTS OF THE ISSUER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.3 Appointment to Fill a Vacancy in Office of Trustee . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.4 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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Section 3.5 Limitation on Dividends; Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.6 Covenants as to Consumers Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.1 Issuer to Furnish Trustee Names and Addresses of Securityholders . . . . . . . . . . . . . . . . 25
Section 4.2 Preservation and Disclosure of Securityholders Lists . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.4 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default . . . . . . . . . . . . . 30
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt . . . . . . . . . . . . . . . . . 33
Section 5.3 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.4 Suits for Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.5 Restoration of Rights on Abandonment of Proceedings . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.6 Limitations on Suits by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.7 Unconditional Right of Securityholders to Receive Principal and Interest and to Institute
Certain Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default . . . . . . . . . . . . 38
Section 5.9 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.10 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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Section 5.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances . . . . . . . . . 40
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs . . . . . . . . . . . . . . . . . 40
Section 5.13 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE SIX
CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default . . . . . . . . . . 41
Section 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds
Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc. . . . . . . . . . . . . . . . . . . . 44
Section 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.6 Compensation and Indemnification of Trustee and Its Prior Claim . . . . . . . . . . . . . . . . 44
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc. . . . . . . . . . . . . . . . . . . . . 45
Section 6.8 Qualification of Trustee; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.9 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.10 Resignation and Removal; Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . . 46
Section 6.11 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee . . . . . . . . . . . . 48
Section 6.13 Preferential Collection of Claims Against the Issuer . . . . . . . . . . . . . . . . . . . . . 49
Section 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.2 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . . . . . . . 51
Section 7.3 Holders to Be Treated as Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 8.1 Supplemental Indentures Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . 53
Section 8.2 Supplemental Indentures With Consent of Securityholders . . . . . . . . . . . . . . . . . . . . 55
Section 8.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 8.5 Notation on Securities in Respect of Supplemental Indentures . . . . . . . . . . . . . . . . . . 57
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 9.1 Covenant of Issuer Not to Merge, Consolidate, Sell or Convey Property Except Under Certain
Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 9.2 Successor Corporation Substituted for Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 9.3 Opinion of Counsel Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 10.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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Section 10.2 Application by Trustee of Funds Deposited for Payment of Securities . . . . . . . . . . . . . . 62
Section 10.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Three Years . . . . . . . . . . 62
Section 10.5 Indemnity for Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption . . . . . . . . . 65
Section 11.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE TWELVE
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 12.1 Applicability of Article; Securities Subordinated to Senior Indebtedness . . . . . . . . . . . 68
Section 12.2 Issuer Not to Make Payments with Respect to Subordinated Securities in Certain
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 12.3 Subordinated Securities Subordinated to Prior Payment of All Senior Indebtedness on
Dissolution, Liquidation or Reorganization of Issuer . . . . . . . . . . . . . . . . . . . . 71
Section 12.4 Holders of Subordinated Securities to be Subrogated to Right of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.5 Obligation of the Issuer Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.6 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice . . . . . . . . . . . . 74
Section 12.7 Application by Trustee of Monies or Government Obligations Deposited with It . . . . . . . . . 75
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Section 12.8 Subordination Rights Not Impaired by Acts or Omissions of Issuer or Holders of
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 12.9 Securityholders Authorize Trustee to Effectuate Subordination of Securities . . . . . . . . . . 76
Section 12.10 Right of Trustee to Hold Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 12.11 Article Twelve Not to Prevent Events of Defaults . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 13.1 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 13.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities . . . . . . . 77
Section 13.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . 77
Section 13.4 Notices and Demands on Issuer, Trustee and Holders of Securities . . . . . . . . . . . . . . . 77
Section 13.5 Officers' Certificates and Opinions of Counsel; Statements to be Contained Therein . . . . . . 78
Section 13.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 13.7 Conflict of any Provision of Indenture with Trust Indenture Act of 1939 . . . . . . . . . . . . 79
Section 13.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 13.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 13.10 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 13.11 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
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THIS INDENTURE dated as of November ___, 1995 between
Consumers Power Company, a Michigan corporation (the "Issuer"), and The Bank of
New York, organized under the laws of the United States, as trustee (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to
time of its debentures, notes, bonds or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders
from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939, including terms defined therein by reference to the Securities Act of
1933, as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted accounting
principles" means such
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accounting principles as are generally accepted in the United States of America
at the time of any computation. References to any statute mean such statute as
amended at the time and includes any successor legislation. 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. The terms defined in this Article include the plural as well as
the singular.
"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" shall have the meaning set forth in
Section 6.14.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"Business Day" means, a day on which banking institutions in
New York, New York or Delaware are not authorized or required by law or
regulation to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such duties at
such time.
"Common Securities" means undivided beneficial interests in
the assets of a Consumers Trust which rank pari passu with Preferred Securities
issued by such trust; provided, however, that upon the occurrence of an Event
of Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and
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maturity are subordinated to the rights of holders of Preferred Securities.
"Common Securities Guarantee" means any guarantee that the
Issuer may enter into that operates directly or indirectly for the benefit of
holders of Common Securities of Consumers Trust.
"Consumers Trust" means a Delaware business trust formed by
the Issuer for the purpose of purchasing the Securities of the Issuer.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which
this Indenture is dated, located at 101 Barclay St., New York, New York 10286.
"Declaration" means, in respect of a Consumers Trust, the
amended and restated declaration of trust of such Consumers Trust or any other
governing instrument of such Trust.
"Depository" means, with respect to the Securities of any
series issuable or issued in the form of one or more Global Securities, the
Person designated as Depository by the Issuer pursuant to Section 2.3, which
must be a clearing agency registered under the Securities Exchange Act of 1934,
as amended, and any other applicable statute or regulation, until a successor
Depository shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depository" shall mean each Person who is then a
Depository hereunder; and if at any time there is more than one such Person,
"Depository" as used with respect to the Securities of any such series shall
mean each Depository with respect to the Global Securities of such series.
"Event of Default" means any event or condition specified as
such in Section 5.1.
"Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is
unconditionally guaranteed by the United States, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of a holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the Government
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Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean the Person in whose name such Security is registered in the
Security Register kept by the Issuer for that purpose in accordance with the
terms hereof.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as provided hereunder.
"Interest Payment Date" means (a) the date or dates, if any,
on which interest is to be paid on any Security as established pursuant to
Section 2.3(f), (b) the date of maturity or redemption of such Security, and
(c) only with respect to defaulted interest on such Security, the date
established for the payment of such defaulted interest pursuant to Section 2.7
hereof.
"Issuer" means (except as otherwise provided in Article Six)
Consumers Power Company, a Michigan corporation, and, subject to Article Nine,
its successors and assigns.
"Issuer Order" means a written statement, request or order of
the Issuer signed in its name by the Chairman, the President or any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the title "Vice President") or by the Treasurer of the
Issuer.
"Maturity" means, when used with respect to any Security, 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.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or any Vice President (whether or not designated by a
number or numbers or a word or words added before or after the title "Vice
President"), and by the Chief Financial Officer, Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary, of the Issuer and
delivered to the Trustee. Except as otherwise provided herein, each such
certificate shall include the statements provided for in Section 14.5.
"Opinion of Counsel" means an opinion in writing signed by the
counsel of the Issuer as designated by the Board of Directors or by such other
legal counsel who may be an employee of or regular counsel to the Issuer and
who shall be satisfactory to the Trustee. Each such opinion shall include the
statements
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provided for in Section 13.5, if and to the extent required thereby.
"Outstanding" (except as otherwise provided in Section 6.8),
when used with reference to Securities, shall, subject to the provisions of
Section 7.4, mean, as of any particular time, all Securities theretofore
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or Government Obligations (as provided for
in Section 10.1) in the necessary amount shall have been theretofore
deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the Holders of such Securities (if the Issuer
shall act as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the Maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a Person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder
Securities owned by the Issuer or any other obligor upon the Securities of any
Affiliate of the Issuer or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned 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 Issuer or any other obligor
upon the Securities or an Affiliate of the Issuer or of such other obligor.
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"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Preferred Securities" means undivided beneficial interests
in the assets of a Consumers Trust which rank pari passu with Common Securities
issued by such trust; provided however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the
Issuer may enter into that operates directly or indirectly for the benefit of
holders of Preferred Securities of a Consumers Trust.
"principal" means the amount (including, without limitation,
if and to the extent applicable, any premium) that is payable with respect to a
Security as of any date and for any purpose (including, without limitation, in
connection with any sinking fund, upon any redemption at the option of the
Issuer, upon any purchase or exchange at the option of the Issuer or the Holder
of such Security and upon any acceleration of the Maturity of such Security).
"Property Trustee" means the entity performing the functions
of the Property Trustee of a Consumers Trust under the applicable Declaration
of such Consumers Trust.
"Record Date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee,
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president (whether or not designated by numbers or words added before or
after the title "vice president"), the cashier, the secretary, the treasurer,
any trust officer, any assistant trust officer, any assistant vice president,
any assistant cashier, any assistant secretary, any assistant treasurer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
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"Security" or "Securities" (except as otherwise provided in
Section 6.8) shall have the meaning stated in the first recital of this
Indenture and, more particularly, any Securities that have been authenticated
and delivered under this Indenture.
"Security Register" and "Security Registrar" shall have the
respective meanings set forth in Section 2.8.
"Senior Indebtedness" shall have the meaning set forth in
Section 12.1(b).
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Issuer or by 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.
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or interest thereon, 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.
"Trust Indenture Act of 1939" or "Trust Indenture Act" (except
as otherwise provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was originally
executed.
"Trust Securities" means Common Securities and Preferred
Securities.
"Trustee" means the Person identified as the "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Six, shall
also include any successor trustee. "Trustee" shall also 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 the Securities of such series.
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally. The Securities of each series
shall be substantially in such form (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions (as set
forth in a Board Resolution or, to
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the extent established pursuant to rather than set forth in a Board Resolution,
an Officers' Certificate detailing such establishment) 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 imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification and such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities as
evidenced by their execution 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 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
,
----------------------------------
as Trustee
By
-----------------------
Authorized Officer"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
certificate of authentication to be borne by the Securities of each such series
shall be substantially as follows:
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"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
,
-------------------------
as Authenticating Agent
By
-----------------------
Authorized Officer"
Section 2.3 Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series and
shall be direct obligations of the Issuer.
(c) Each Security shall be dated and issued as of the date of
its authentication by the Trustee.
(d) Each Security shall bear interest from the later of its
original date of authentication or the most recent Interest Payment Date to
which interest has been paid or duly provided for with respect to such
Security until the principal of such Security is paid or made available for
payment, and interest on each Security shall be payable on each Interest
Payment Date after the date of such Security.
(e) Each Security shall mature on a date specified in the
Security and the principal amount of each outstanding Security shall be payable
on the Maturity specified therein.
(f) There shall be established in or pursuant to one or more
Board Resolutions (and, to the extent established pursuant to rather than set
forth in a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series:
(1) the designation of the Securities of such series, which
shall distinguish the Securities of such series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of such series that 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
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lieu of, other Securities of such series pursuant to Section 2.8, 2.9,
2.11, 8.5 or 11.3);
(3) subject to Section 2.3(e), the date or dates (and whether
fixed or extendible) on which the principal of the Securities of such
series is payable;
(4) the date from which interest on the Securities of such
series shall begin to accrue, the rate or rates at which the
Securities of such series shall bear interest, if any, the Interest
Payment Date or Dates for the Securities of such series and the Record
Date for interest payable on any Interest Payment Date;
(5) the place or places where the principal of and any
interest on Securities of such series shall be payable and where such
Securities may be registered or transferred (if in addition to, or
other than, as provided in Section 3.2);
(6) the right, if any, of the Issuer to redeem or purchase
Securities of such series, in whole or in part, at its option and the
period or periods within which, the price or prices at which and any
terms and conditions upon which Securities of such series may be so
redeemed;
(7) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of such series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the period or
periods within which and any terms and conditions upon which
Securities of such series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $25 and any integral
multiple thereof, the denominations in which Securities of such series
shall be issuable;
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(9) whether the Securities of such series will be
subordinated to the payment of Senior Indebtedness on the terms and
conditions set forth in Article Twelve and whether such subordination
shall be subject to any provisions in addition to or in lieu of those
set forth in Article Twelve;
(10) whether the Securities of such series will be issuable
as Global Securities;
(11) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of such series held by a person
who is not a U.S. Person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Issuer will have the option to redeem such Securities rather than pay
such additional amounts;
(12) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
and the form and terms of any such certificates, documents or
conditions;
(13) any trustees, depositaries, authenticating or paying
agents, transfer agents, conversion agents or registrars or any other
agents with respect to the Securities of such series;
(14) any events of default or covenants with respect to the
Securities of such series other than those specified herein;
(15) the Person to whom any interest on a Security of such
series shall be payable, if other than the Person in whose name the
Security (or one or more predecessor Securities) is registered at the
close of business on the Record Date for such interest;
(16) if the Securities of such series shall be issued in
whole or in part in the form of one or more Securities, whether
beneficial owners of interests in any such Global Security may
exchange such interests for Securities of such series of like tenor
and of authorized form and denomination and the circumstances
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under which any such changes may occur, if other than in the manner
provided in Section 2.8;
(17) the right of the Issuer, if any, to defer any payment
of principal of or interest on the Securities of such series, and the
maximum length of any such deferral period;
(18) whether any property will be pledged to secure the
Securities; and
(19) any other terms of such 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 denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officers' Certificate
referred to above or as set forth in any indenture supplemental hereto referred
to above. All Securities of any one series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution, such
Officers' Certificate or in any such indenture supplemental hereto.
Section 2.4 Authentication and Delivery of Securities. The
Issuer may from time to time deliver Securities of any series, executed by the
Issuer to the Trustee for authentication, together with the applicable
documents referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the order of the Issuer
(contained in the Issuer Order referred to below in this Section) or pursuant
to such procedures acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. If so provided in the Board
Resolution, Officers' Certificate or supplemental indenture establishing the
Securities of any series, the maturity date, interest accrual date, interest
rate, Interest Payment Date or Dates and any other terms of any or all of the
Securities of such series may be determined by or pursuant to such Issuer Order
and procedures. If provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to instructions (from the Issuer
or its duly authorized agent) in writing, by facsimile or any other method
mutually agreed upon by the Issuer and Trustee. In authenticating the
Securities of a series and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive (but, in the case of subparagraphs 2, 3 and 4 below, only at or before
the time of the first request of the Issuer to the Trustee to authenticate
Securities of such series, however, any request after the first shall be deemed
to include the representation of
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the Issuer that the document previously delivered pursuant to subparagraphs 2,
3 and 4 below are still true and in effect) and (subject to Section 6.1) shall
be fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities are not to be
delivered to the Issuer.
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by
or pursuant to which the forms and terms of the Securities of such
series were established;
(3) an Officers' Certificate setting forth the form or forms
and terms of the Securities of such series stating (a) that such form
or forms and terms have been established pursuant to Sections 2.1 and
2.3 and comply with this Indenture, (b) the aggregate principal amount
of all of the Securities outstanding under this Indenture and (c) the
aggregate amount of interest paid with respect to such outstanding
Securities on the most recent Interest Payment Date and covering such
other matters as the Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting it to rely on
an Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities of such series have
been duly authorized and established in conformity with the
provisions of this Indenture;
(b) the terms of the Securities of such series have
been duly authorized and established in conformity with the
provisions of this Indenture;
(c) when the Securities of such series have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered
to and duly paid for by the purchasers thereof, they will have
been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in
accordance with their
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respective terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights
and to general principles of equity, and will be entitled to
the benefits of this Indenture;
(d) the Indenture has been duly authorized, executed
and delivered by the Issuer and constitutes a legal, valid and
binding agreement of the Issuer, enforceable in accordance
with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights
and to general principles of equity;
(e) the issuance of the Securities will not result
in any default under this Indenture, or any other contract,
indenture, loan agreement or other instrument to which the
Issuer is a party or by which it or any of its property is
bound; and
(f) no consent, approval, authorization, order,
registration or qualification of or with any governmental
agency or body having jurisdiction over the Issuer is required
for the execution and delivery of the Securities of such
series by the Issuer, except such as have been obtained
(except that no opinion need be expressed as to state
securities or Blue Sky laws).
The Trustee shall have the right to decline to authenticate
and deliver any Securities of any series under this Section (other than
Securities the forms and terms of which shall have been established by
supplemental indenture) if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken by the Issuer or if the Trustee in
good faith by its board of directors or board of trustees, executive committee
or a trust committee of directors, trustees or Responsible Officers shall
determine that such action would expose the Trustee to personal liability to
existing Holders or would affect the Trustee's rights, duties or immunities
under the Securities of any such series, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer
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Order with respect to such series, authenticate and deliver one or more Global
Securities that (i) shall be in an aggregate amount equal to the aggregate
principal amount specified in such Issuer Order, (ii) shall be registered in
the name of the Depository therefor or its nominee, (iii) shall be delivered by
the Trustee to such Depository or pursuant to such Depository's instructions
and (iv) shall bear a legend substantially to the following effect: "Unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depository to the nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository."
Section 2.5 Execution of Securities. The Securities shall be
signed on behalf of the Issuer by both (a) its Chairman, its President or any
Vice President (whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President"), under its corporate
seal reproduced thereon, which need not be attested and (b) by its Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary. Such signatures may be the manual or facsimile signatures
of such officers. Typographical and other minor errors or defects in any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have so signed any
of the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Issuer; and any Security may be so signed on behalf of the
Issuer by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Issuer, although at the date of
the execution and delivery of this Indenture any such person was not such an
officer.
Section 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. The execution of
such certificate by the Trustee upon any Security executed by the Issuer shall
be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall
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have been authenticated and delivered hereunder but never issued and sold by
the Issuer, and the Issuer shall deliver such Security to the Trustee for
cancellation as provided in Section 2.10, together with a written statement
(which need not comply with Section 14.5 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Issuer, 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 2.7 Denomination of Securities; Payments of Interest.
The Securities of each series shall be issuable in registered form in
denominations established as contemplated by Section 2.3. The Securities of
each series shall be numbered, lettered or otherwise distinguished in such
manner or in accordance with such plan as the officers of the Issuer executing
the same may determine with the approval of the Trustee, as evidenced by the
execution and authentication thereof.
The Securities of each series shall bear interest from the
date, and such interest shall be payable on the Interest Payment Dates,
established as contemplated by Section 2.3.
The Person in whose name any Security of any series
is registered at the close of business on any Record Date applicable to such
series with respect to any Interest Payment Date for such series shall be
entitled to receive the interest, if any, payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Security subsequent to the
Record Date and prior to such Interest Payment Date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
Interest Payment Date, in which case such defaulted interest shall be paid to
the Persons in whose names Outstanding Securities of such series are registered
at the close of business on a subsequent Record Date (which shall be not less
than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the Holders of Securities of such series not less than 15 days preceding such
subsequent Record Date. The term "Record Date", as used with respect to any
Interest Payment Date (except a date for payment of defaulted interest) for the
Securities of any series, shall mean the date specified as such in the terms of
the Securities of such series established as contemplated by Section 2.3.
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.
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Section 2.8 Registration, Transfer and Exchange. The Issuer
will keep, or cause to be kept, at the Corporate Trust Office and at each other
office or agency to be maintained for the purpose as provided in Section 3.2
for each series of Securities a register or registers (collectively, the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, it will provide for the registration of Securities of such series
and the registration of transfer of Securities of such series. The Security
Register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers not maintained by the Trustee shall
be open for inspection by the Trustee. Unless and until otherwise determined
by the Issuer pursuant to Section 2.3, the Security Register with respect to
each series of Securities shall be kept solely at the Corporate Trust Office
and, for this purpose, the Trustee shall be designated the "Security
Registrar."
Upon due presentation for registration of transfer of any
Security of any series at any such office or agency, the Issuer shall execute
and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series, maturity date and
interest rate in authorized denominations for a like aggregate principal
amount.
At the option of the Holder thereof, Securities of any series
(other than a Global Security, except as set forth below) may be exchanged for
one or more Securities of such series in authorized denominations for a like
aggregate principal amount, upon surrender of such Securities to be exchanged
at the office or agency to be maintained for such purpose in accordance with
Section 3.2 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. All
Securities surrendered upon any exchange or transfer provided for in this
Indenture shall be promptly cancelled and disposed of by the Trustee and the
Trustee will deliver a certificate of disposition thereof to the Issuer.
All Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
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connection with any exchange or registration of transfer of Securities, other
than exchanges pursuant to Sections 2.11, 8.5 and 11.2 not involving any
transfer. No service charge shall be made for any such transaction.
The Issuer shall not be required to (a) issue, exchange or
register a transfer of any Securities of any series for a period of 15 days
next preceding the first mailing or publication of notice of redemption of
Securities of such series to be redeemed or (b) exchange or register the
transfer of any Securities selected, called or being called for redemption, in
whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depository for such Global Security to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository
for such Global Security or a nominee of such successor Depository.
If at any time a Depository for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depository for such Securities or if at any
time any such Depository shall no longer be eligible as a Depository, the
Issuer shall appoint a successor Depository with respect to the Securities held
by such Depository. If a successor Depository is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Securities of such series shall no longer be represented by
one or more Global Securities held by such Depository, and the Issuer shall
execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of definitive Securities of such series, shall
authenticate and deliver Securities of such series in definitive registered
form without coupons, in any authorized denominations and in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities held by such Depository in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion
determine that the Securities of a particular series shall no longer be
represented by a Global Security or Securities. In such event, the Issuer
shall execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered
form
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in any authorized denominations and in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing
Securities of such series in exchange for such Global Security or Securities.
If so specified by the Issuer pursuant to Section 2.3 with
respect to Securities of a particular series represented by a Global Security,
the Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for Securities of such series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depository. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver:
(i) to each Person specified by such Depository a new
Security or Securities of such series, in any authorized denominations
requested by such Person, in an aggregate principal amount equal to,
and in exchange for, such Person's beneficial interest in the Global
Security; and
(ii) to such Depository a new Global Security in a
denomination equal to the difference between the principal amount of
the surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of any Global Security for Securities in
definitive registered form in authorized denominations, such Global Security
shall be cancelled by the Trustee or an agent of the Issuer or the Trustee.
Securities in definitive registered form without coupons issued in exchange for
a Global Security pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee.
The Trustee or such agent shall deliver such Securities to or as directed by
the Persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon receipt of an Issuer Order, the Trustee shall
authenticate and deliver a new
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Security of the same series, maturity date and interest rate, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer and to the
Trustee or any agent of the Issuer or the Trustee such security or indemnity as
may be required by them to indemnify and defend and to save each of them and
any agent of either of them harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof and, in the case of mutilation or
defacement, shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security the Issuer 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 or its agent) connected
therewith. In case any Security which has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated or defaced Security), if the applicant for
such payment shall furnish to the Issuer and to the Trustee or any agent of the
Issuer or the Trustee such security or indemnity as may be required by them to
save each of them harmless, and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
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Section 2.10 Cancellation of Securities; Destruction Thereof.
All Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the Issuer or any
agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and
no Securities shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Trustee or its agent shall
dispose of cancelled Securities held by it and deliver a certificate of
disposition to the Issuer. If the Issuer or its agent shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same
are delivered to the Trustee or its agent for cancellation.
Section 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Securities
of such series may be surrendered in exchange for such definitive Securities in
registered form without charge at each office or agency to be maintained for
such purpose in accordance with Section 3.2 and the Trustee shall authenticate
and deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series in
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 2.3. The provisions of this Section are subject to any restrictions or
limitations on the issue and delivery of temporary Securities of any series
that may be established pursuant to Section 2.3.
Section 2.12 Computation of Interest. Except as otherwise
specified as contemplated by Section 2.3 for Securities
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of any series, interest, if any, on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, premium, and
interest, if any, on, each of the Securities of such series (together with
any additional amounts payable pursuant to the terms of such Securities) at the
place or places, at the respective times and in the manner provided in such
Securities and in this Indenture. The interest on Securities (together with
any additional amounts payable pursuant to the terms of such Securities) shall
be payable only to or upon the written order of the Holders thereof and, at the
option of the Issuer, may be paid by wire transfer or by mailing checks for
such interest payable to or upon the written order of such Holders at their
last addresses as they appear on the registry books of the Issuer.
Section 3.2 Offices for Payments, etc. So long as any
Securities are outstanding hereunder, the Issuer will maintain in The City of
New York, State of New York an office or agency where the Securities of each
series may be presented for payment, where the Securities of each series may be
presented for exchange as in this Indenture provided, and where the Securities
of each series may be presented for registration of transfer as in this
Indenture provided.
The Issuer will maintain in The City of New York an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities of any series, or this Indenture may be served.
The Issuer will give to the Trustee prompt written notice of
the location of each such office or agency and of any change of location
thereof. In case the Issuer shall fail to maintain any office or agency
required by this Section to be located in The City of New York, State of New
York or shall fail to give such notice of the location or of any change in the
location of any of the above offices or agencies, presentations and demands may
be made and notices may be served at the Corporate Trust Office of the Trustee,
and, in such event, the Trustee shall act as the Issuer's agent to receive all
such presentations, surrenders, notices and demands.
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The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of any series may be
presented for payment, where the Securities of such series may be presented for
exchange as in this Indenture provided, where the Securities of such series may
be presented for registration of transfer as in this Indenture provided and the
Issuer may from time to time rescind any such designation; provided, however,
that no such designation or rescission shall in any manner relieve the Issuer
of its obligation to maintain any office or agency provided for in this
Section. The Issuer will give to the Trustee prompt written notice of any such
designation or rescission thereof and of change in the location of any such
other office or agency.
Section 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
Section 3.4 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(a) that such paying agent will hold all sums received by it
as such agent for the payment of the principal of or interest, if any,
on the Securities of such series (whether such sums have been paid to
it by the Issuer or by any other obligor on the Securities of such
series) in trust for the benefit of the Holders of the Securities of
such series entitled thereto or of the Trustee until such sums shall
be paid to such Holders or otherwise disposed of as herein provided;
(b) that such paying agent will give the Trustee notice of
any failure by the Issuer (or by any other obligor on the Securities
of such series) to make any payment of the principal of or interest on
the Securities of such series when the same shall be due and payable;
and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal
of or interest, if any, on the Securities of any
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series, deposit with the paying agent a sum sufficient to pay such principal or
interest so becoming due, such sum to be held in trust for the benefit of the
Holders of the Securities of such series entitled to such principal or
interest, and (unless such paying agent is the Trustee) the Issuer will
promptly notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest, if any, on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series a sum sufficient to pay such principal or interest, if any, so
becoming due until such sums shall be paid to such Holders or otherwise
disposed of as herein provided. The Issuer will promptly notify the Trustee of
any failure to take such action.
Anything in this section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the Issuer or
any paying agent hereunder, as required by this Section, such sums to be held
by the Trustee upon the trusts herein contained, 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.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
Section 3.5 Limitation on Dividends; Transactions with
Affiliates. (a) If Securities are issued to a Consumer's Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such
Consumers Trust and (i) there shall have occurred any event that would
constitute an Event of Default or (ii) the Company shall be in default with
respect to its payment or any obligations under the Preferred Securities
Guarantee or Common Securities Guarantee relating to such Trust Securities,
then (x) the Company shall not declare or pay any dividend on , make any
distributions with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock, (y) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Company which rank pari passu with or junior to such Securities and (z) the
Company shall not make guarantee payments with respect to the foregoing (other
than pursuant to the Preferred Securities Guarantee).
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(b) If Securities are issued to a Consumers Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Consumers Trust and the Company shall have given notice of its election to
defer payments of interest on such Securities by extending the interest payment
period as provided in any indenture supplemental hereto and such period, or any
extension thereof, shall be continuing, then (i) the Company shall not declare
or pay any dividend, or make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any of its capital
stock, (ii) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Company which rank pari passu with or
junior to such Securities and (iii) the Company shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Preferred
Securities Guarantee), provided, however, the Company may declare and pay a
stock dividend where the dividend stock is the same stock as that on which the
dividend is being paid.
Section 3.6 Covenants as to Consumers Trust. In the
event Securities are issued to a Consumers Trust or a trustee of such trust, in
connection with the issuance of Trust Securities by such trust, for so long as
such trust Securities remain outstanding, the Company will (i) maintain 100%
direct or indirect ownership of the Common Securities of such trust; provided,
however, that ny permitted successor of the Company under the Indenture may
succeed to the Company's ownership of the Common Securities, (ii) not cause, as
sponsor of such trust, or permit, as holder of Common Securities of such trust,
the dissolution, winding-up or termination of such trust, except in connection
with a distribution of Securities as provided in the Declaration and in
connection with certain mergers, consolidations or amalgamations permitted by
the Declaration and (iii) use its reasonable efforts to cause such trust (a) to
remain a business trust, except in connection with a distribution of
Securities, the redemption of all of the Trust Securities of such Consumers
Trust or certain mergers, consolidations or amalgamations, each as permitted by
the Declaration of such Consumers Trust, and (b) to otherwise continue to be
classified for United States federal income tax purposes as a grantor trust.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Names and Addresses of
Securityholders. The Issuer and any other obligor on the Securities covenant
and agree that they will furnish or cause to be furnished to the Trustee a list
in such form as the
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Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each series:
(a) semi-annually and not more than 15 days after each Record
Date for the payment of interest on such Securities, as of such Record
Date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing Securities, in each year; and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such
request, as of a date not more than 15 days prior to the time such
information is furnished;
provided that if and so long as the Trustee shall be the Security Registrar for
such series such list shall not be required to be furnished.
Section 4.2 Preservation and Disclosure of Securityholders
Lists. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to it
as provided in Section 4.1, (ii) received by it in the capacity of Security
Registrar for such series, if so acting, and (iii) filed with it within the two
preceding years pursuant to Section 4.4(c)(ii). The Trustee may destroy any
list furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case the applicants must all
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and such
application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section; or
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(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of such
subsection (a) and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of such series or all Holders of Securities,
whose name and address appears in the information preserved at the time by the
Trustee in accordance with the provisions of such subsection (a) a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interests of the
Holders of Securities of such series or of all Securities, as the case may be,
or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every Holder of Securities by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under such subsection
(b).
Section 4.3 Reports by the Issuer. The Issuer covenants:
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(a) to file with the Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or if the Issuer
is not required to file information, documents or reports pursuant to
either of such Sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents, and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a debt
security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and
covenants provided for in this Indenture as may be required from time
to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within
30 days after the filing thereof with the Trustee, in the manner and
to the extent provided in Section 4.4(c), such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to subsections (a) and (b) of this Section as may be required
to be transmitted to such Holders by rules and regulations prescribed
from time to time by the Commission; and
(d) to furnish to the Trustee, not less often than annually,
a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Issuer's compliance with all conditions and covenants
under this Indenture (such compliance to be determined without regard
to any period of grace or requirement of notice provided under this
Indenture).
Section 4.4 Reports by the Trustee. (a) Annually, not later
than 60 days after May 15 of each year, the Trustee shall transmit to
the Holders and the Commission a report with respect to events
described in Section 313(a) of the Trust Indenture Act, in such manner
and to the extent revised thereunder.
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(i) any change to its eligibility under Section 6.9 and its
qualification under Section 6.8;
(ii) the creation of or any material change to a relationship
contemplated by Section 6.8;
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of such
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate
not more than 1/2 of 1% of the principal amount of the Securities of
such series Outstanding on the date of such report;
(iv) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Issuer (or by any other
obligor on the Securities) to the Trustee in its individual capacity
on the date of such report, with a brief description of any property
held as collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described in
Section 6.13(b)(2),(3),(4) or (6);
(v) any change to the property and funds of the Issuer, if
any, physically in the possession of the Trustee (as such) on the date
of such report;
(vi) any release, or release and substitution of property
subject to the lien of the Indenture (and the consideration therefor,
if any) which the Trustee has not previously reported;
(vii) any additional issue of Securities which the Trustee
has not previously reported; and
(viii) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Securities of such
series,
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except action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of Section
5.11.
(b) The Trustee shall transmit to the Holders of each series,
as provided in subsection (c) of this Section, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the Trustee,
as such, since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section (or if no such report has yet been
so transmitted, since the date of this Indenture) for the reimbursement of
which it claims or may claim a lien or charge, prior to that of the Securities
of such series, on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this subsection (b), except
that the Trustee shall not be required (but may elect) to report such advances
if such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities of such series outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail to all Holders of Securities, as the names and addresses of such Holders
appear upon the Security Register;
(d) A copy of each such report shall, at the time of such
transmission to the Holders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange, if any, upon which the Securities of any
series are listed and also with the Commission. The Issuer agrees to notify
the Trustee when and as the Securities of such series become admitted to
trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series, wherever used herein, means each of the following events which
shall have occurred and be continuing (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):
(a) default in the payment of any installment of interest
upon any of the Securities of such series as
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and when the same shall become due and payable, (whether or not
payment is prohibited by the provisions of Article 12 hereof), and
continuance of such default for a period of 30 days; provided,
however, that if the Issuer is permitted by the terms of the
Securities of such series to defer the payment in question, the date
on which such payment is due and payable shall be the date on which
the Issuer is required to make payment following such deferral, if
such deferral has been elected pursuant to the terms of the
Securities; or
(b) default in the payment of all or any part of the
principal of or premium on any of the Securities of such series as and
when the same shall become due and payable (whether or not payment is
prohibited by the provisions of Article 12 hereof), whether at
Maturity, upon purchase by the Issuer at the option of the Holder,
upon any redemption, by declaration or otherwise;
(c) default in the deposit or payment of any sinking fund or
analogous payment (whether or not payment is prohibited by the
provisions of Article 12 hereof) for the benefit of the Securities of
such series as and when the same shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the
Issuer in the Securities of such series or in this Indenture contained
(other than a covenant or agreement expressly included herein solely
for the benefit of Securities of other series) for a period of 60 days
after the date on which written notice specifying such failure,
stating that such notice is a "Notice of Default" hereunder and
demanding that the Issuer remedy the same, shall have been given by
registered or certified mail, return receipt requested, to the Issuer
by the Trustee, or to the Issuer and the Trustee by the Holders of not
less than 25% in aggregate principal amount of the Outstanding
Securities of all series affected thereby; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, adjudging the Issuer a bankrupt or
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insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Issuer under any applicable law, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of the
property of the Issuer, or ordering the winding up or liquidation of
the affairs of the Issuer, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case or proceeding
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect or any other case or proceeding to be
adjudicated a bankrupt or insolvent, or consent to the entry of a
decree or order for relief in an involuntary case under any such 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 law, or
consent to the filing of such petition or to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any
substantial part of the property of the Issuer, or make any general
assignment for the benefit of creditors, or the notice by it in
writing of its inability to pay its debts generally as they become
due, or the taking of any corporate action by the Issuer in
furtherance of any such action; or
(i) in the event Securities are issued to a Consumers
Trust or the trustee of such trust of the Company in connection with
the issuance of Trust Securities by such trust, such trust shall have
voluntarily or involuntarily dissolved, wound-up its business or
otherwise terminated its existence except in connection with (i) the
distribution of Securities to holders of Trust Securities in
liquidation of their interests in such trust, (ii) the redemption of
all outstanding Trust Securities of such trust, and (iii) mergers,
consolidations or amalgamations, each as permitted by the Declaration
of such trust;
then, unless the principal of all the Securities shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if given by
such Holders), may declare the entire principal of all the Securities of such
series then Outstanding and interest accrued thereon, if any, to be due
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and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing paragraph, however, is subject to the condition
that if, at any time after the principal of the Securities of one or more
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series and the principal of all Securities of such series
which shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the same rate as
the rate of interest specified in the Securities of such series, to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of negligence or bad faith, and if any and all
Events of Default under this Indenture with respect to such series, other than
the non-payment of the principal of Securities of such series which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein - then, and in every such case, the Holders of a majority in
aggregate principal amount of all the Securities of such affected series then
Outstanding by written notice to the Issuer and to the Trustee, may direct the
Trustee to waive all defaults with respect to such series and rescind and annul
such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
Section 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be
made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether at Maturity, upon redemption, by declaration or otherwise -- then, upon
demand of the Trustee, the Issuer will pay to the Trustee for the benefit of
the Holders of the Securities of such series the whole amount that then shall
have become due and payable on all Securities of such series for principal or
interest, as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest at the
same rate as the rate of interest specified in the Securities of
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such series); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any
expenses and liabilities incurred by such parties, and all advances made by the
Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of such series to the Holders,
whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities of such series and collect in the manner provided by law
out of the property of the Issuer or other obligor upon the Securities of such
series, wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities of any series under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or such other obligor, or to the creditors or property
of the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the whole amount
of the principal and interest owing and unpaid in respect of the
Securities of each series, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the
Trustee and its agents, attorneys and counsel, and for reimbursement
of all expenses and liabilities incurred, and all advances made, by
the Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial
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proceedings relative to the Issuer or such other obligor, or to the
creditors or property of the Issuer or such other obligor;
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of each series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings; and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, liquidator,
custodian or other similar official is hereby authorized by each of
the Securityholders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of payments directly to
the Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, and its
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except, in each case,
as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of any series 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 except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series may be prosecuted and
enforced by the Trustee without the possession of any of the Securities of such
series or the production thereof at any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and
compensation of the Trustee and its agents, attorneys and counsel, shall be for
the ratable benefit of the Holders of the Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
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Indenture to which the Trustee shall be a party), the Trustee shall be held to
represent all the Holders of the Securities in respect to which action was
taken, and it shall not be necessary to make any Holders of such Securities
parties to any such proceedings.
Section 5.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities in respect of which
moneys have been collected and stamping (or otherwise noting) thereon the
payment, and upon surrender thereof if fully paid, or issuing Securities of the
same series in reduced principal amounts in exchange for the presented
Securities if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection
applicable to such series, including reasonable compensation to the
Trustee and its agents, attorneys and counsel and of all expenses and
liabilities incurred, and all advances made, by the Trustee except as
a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest, if
any, on the Securities of such series in default in the order of the
maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee and to the
extent permitted by law) upon the overdue installments of interest at
the same rate as the rate of interest specified in such Securities,
such payments to be made ratably to the Persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and
interest, if any, with interest upon the overdue principal, and (to
the extent that such interest has been collected by the Trustee and to
the extent permitted by law) upon overdue installments of interest at
the same rate as the rate of interest specified in the Securities of
such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of
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such series, then to the payment of such principal and interest,
without preference or priority of principal over interest, or of
interest over principal, or of any installment of interest over any
other installment of interest, or of any Security of such series over
any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other Person lawfully entitled thereto.
Section 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee or any Holder shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then, and in every such case, the
Issuer, the Trustee and the Holders shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Issuer, the Trustee and the Holders shall continue as though no such
proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of each affected series then Outstanding
(determined as provided herein and voting as one class) shall have made written
request upon the Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby
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and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and
no direction inconsistent with such written request shall have been given to
the Trustee pursuant to Section 5.9; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Security with every
other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series shall have any right in any manner whatever by virtue
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of Securities or to obtain or seek to
obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of the affected
series. For the protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 5.7 Unconditional Right of Securityholders to Receive
Principal and Interest and to Institute Certain Suits. Notwithstanding any
other provision in this Indenture and any provision of any Security, the right
of any Holder of any Security to receive payment of the principal of and
interest, if any, on such Security on or after the respective due dates
expressed in such Security or any date fixed for redemption, or to institute
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
Section 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Securities 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.
No delay or omission of the Trustee or of any Holder of
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every right and power given
by this Indenture or by law to the Trustee or to the Holders of Securities may
be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Holders of Securities, as the case may be.
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Section 5.9 Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected at the time Outstanding (determined as provided herein and voting as
one class) 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 upon the Trustee with respect to the
Securities of such affected series by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and provided further that (subject to the provisions of
Section 6.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors, its executive committee or a trust
committee of directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in
personal liability or that the actions or forbearances specified in or pursuant
to such direction would be unduly prejudicial to the interests of Holders of
the Securities of all affected series not joining in the giving of said
direction, it being understood that (subject to Section 6.1) the Trustee shall
have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
Section 5.10 Waiver of Past Defaults. Prior to the
declaration of acceleration of the Maturity of any Securities as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of all series at the time Outstanding with respect to which a
default or an Event of Default shall have occurred and be continuing
(determined as provided herein and voting as one class) may on behalf of the
Holders of all such affected Securities waive any past default or Event of
Default described in Section 5.1 and its consequences, except a default or an
Event of Default (i) in the payment of the principal of or interest, if any, on
any Security of such series, or (ii) in respect of a covenant or provision
hereof or of any Security which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of all such affected Securities
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
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Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to such series known to the Trustee to all
Holders of Securities of such series in the manner and to the extent provided
in Section 4.4(c), unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "default" for the
purpose of this Article being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of or the interest, if any, on any of the Securities of such series,
or in the payment of any sinking fund installment or analogous payment on such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
Section 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security by his or her acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the case
of any suit relating to or arising under clause (d) or (g) of section 5.1 (if
the suit relates to the Securities of more than one but less than all series),
10% in aggregate principal amount of the Securities then Outstanding and
affected thereby, or, in the case of any suit relating to or arising under
clause (d) or (g) (if the suit relates to all the Securities then
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Outstanding), 10% in aggregate principal amount of all Securities then
Outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or the interest on any Security
on or after the due date expressed in such Security or any date fixed for
redemption.
Section 5.13 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuer (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
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. The Trustee, prior to the occurrence of an
Event of Default with respect to the Securities of a particular series and
after the curing or waiving of all Events of Default which may have occurred
with respect to such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Securities of a particular series has occurred
(which has not been cured or waived), the Trustee shall exercise with respect
to such series such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default which may have occurred with
respect to such series:
(i) the duties and obligations of the Trustee with
respect to the Securities of
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such series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with an appropriate direction of the Holders pursuant to Section 5.9
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
Section 6.2 Certain Rights of the Trustee. Subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
other certificate,
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statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, security or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or
any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities which
might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default, 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, consent, order, approval, appraisal, bond, debenture,
note, security or other paper or document unless requested in writing
so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities of all affected series then
Outstanding; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
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opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such costs, expenses or
liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Issuer or, if paid by
the Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ, and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
Section 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes
no representation as to the validity or sufficiency of this Indenture or of the
Securities, other than as to the due execution and delivery of the Indenture by
the Trustee. The Trustee shall not be accountable for the use or application
by the Issuer of any of the Securities or of the proceeds thereof.
Section 6.4 Trustee and Agents May Hold Securities;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or
such agent and, subject to Sections 6.8 and 6.13, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.
Section 6.5 Moneys Held by Trustee. Subject to the
provisions of Section 10.4, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability for interest on
any moneys received by it hereunder.
Section 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited
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by any provision of law in regard to the compensation of a trustee of an
express trust), and the Issuer covenants and agrees to pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Trustee
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and the Trustee's duties hereunder, including
the costs and expenses of defending itself against or investigating any claim
of liability in the premises. The obligations of the Issuer under this Section
to compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall not be deemed to be Subordinated Securities,
as that term is defined in Section 12.1, and shall be a senior claim to that of
the Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Securities, and the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses after the occurrence of a default, the
expenses are intended to constitute expenses of administration under any
bankruptcy law.
Section 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture in
reliance thereon.
Section 6.8 Qualification of Trustee; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
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Section 6.9 Persons Eligible for Appointment as Trustee.
There shall at all times be a Trustee hereunder which shall be a corporation
organized and doing business under the laws of the United States of America or
of any State thereof or the District of Columbia having a combined capital and
surplus of at least $5,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
Federal, State or District of Columbia authority. Such corporation shall have
its principal place of business in The City of New York, if there be such a
corporation in such location willing to act upon reasonable and customary terms
and conditions. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
Section 6.10 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign and be discharged of the trusts created by
this Indenture by giving written notice of resignation to the Issuer and by
mailing notice of such resignation to the Holders of the then Outstanding
Securities at their addresses as they shall appear on the Security registry
books. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series
by written instrument, in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any series and shall have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Holder who has
been a bona fide Holder of a Security or Securities of such series for at least
six months may, subject to the provisions of Section 5.12, on behalf of such
Holder and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 after written request
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therefor by the Issuer or by any Holder who has been a bona fide
Holder of a Security or Securities of such series for at least six
months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and shall fail to resign after
written request therefor by the Issuer or by any Holder; or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
Securities of any or all series, as appropriate, and appoint a successor
trustee for such series by written instrument, in duplicate, executed by order
of the Board of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee or trustees, or,
subject to the provisions of Section 5.12, any Holder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may,
on behalf of such Holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount
of the Securities at the time Outstanding may at any time remove the Trustee
and appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 7.1 of the action in that regard taken by the Holders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 6.11.
(e) Except in the case of a default in the payment of the
principal of or interest on any Security, or in the payment of any sinking or
purchase fund installment, the Trustee shall not be required to resign as
provided by Section 6.8 if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that:
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(i) the default under this Indenture may be cured or waived
during a reasonable period and under the procedures described in such
application; and
(ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of the Securityholders.
Section 6.11 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, trusts and duties of its predecessor hereunder, with like
effect as if originally named as trustee hereunder; but, nevertheless, on the
written request of the Issuer or of the successor Trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over and transfer to the successor Trustee all moneys and property at the
time held by it hereunder and shall execute, acknowledge and deliver an
instrument transferring to such successor Trustee all such rights, powers,
trusts and duties. Upon request of any such successor Trustee, the Issuer
shall execute and acknowledge any and all instruments in writing for more fully
and certainly vesting in and confirming to such successor Trustee all such
money, property, rights, powers and trusts. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such Trustee for the benefit of such applicable series to secure any amounts
then due it pursuant to the provisions of Section 6.6.
No successor Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9.
Upon acceptance of appointment by any successor Trustee as
provided in this Section, the Issuer shall give notice thereof to the Holders
of Securities, by mailing such notice to such Holders at their addresses as
they shall appear on the Security registry books. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Issuer fails to give such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
Section 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which
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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 the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time of such succession to the Trustee any of
the Securities of any series shall have been authenticated but not delivered,
any such successor Trustee may adopt the certificate of authentication of any
predecessor Trustee and deliver the Securities so authenticated; and, in case
at that time any of the Securities of any series shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of such successor Trustee;
and in all such cases such certificate of authentication shall have the full
force which is anywhere in the Securities of such series or in this Indenture
provided that the certificate of authentication of the Trustee shall have;
provided that the right to adopt the certification of any predecessor Trustee
or to authenticate Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
Section 6.13 Preferential Collection of Claims Against the
Issuer. The Trustee shall comply with its obligations under the applicable
provisions of Section 311 the Trust Indenture Act.
Section 6.14 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent") which shall be authorized to
act on behalf of, but subject to the direction of, the Trustee to authenticate
and deliver Securities of such series, including Securities issued upon
exchange, registration of transfer, partial redemption or pursuant to Section
2.9. Securities of such series so authenticated and delivered shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is
made in this Indenture to the authentication and delivery of Securities of any
series by the Trustee or to the Trustee's certificate of authentication, such
reference shall be
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deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a certificate of authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State thereof
or of the District of Columbia authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $5,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of any Authenticating Agent, shall
be the successor to such Authenticating Agent with respect to all series of
Securities for which it served as Authenticating Agent without the execution or
filing of any paper or any further act on the part of the Trustee or such
Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall
cease to be eligible hereunder shall, resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Issuer. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall upon receipt of an Issuer Order
appoint a successor Authenticating Agent and shall provide notice of such
appointment to all Holders of Securities affected thereby in the manner and to
the extent provided in Section 6.11 with respect to the appointment of a
successor trustee. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers and duties of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action taken by it as
such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in aggregate principal amount of the Holders of one or more series
of Securities may be evidenced (i) by one or more instruments of substantially
similar tenor signed by such specified percentage of Holders in person or by an
agent or proxy 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; (ii) by the record of such specified
percentage of Holders voting in favor thereof at any meeting of such Holders
duly called and held by the Trustee; and (iii) by a combination of such
instrument or instruments and any such record of a meeting.
Section 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Holder or his agent or proxy and proof of the holding by any
Person of any of the Securities of any series shall be sufficient if made in
the following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the Person executing
such instrument acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such
notary or other such officer. Where such execution is by or on behalf
of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of
the Person executing the same.
(b) The ownership of Securities shall be proved by the
Security Register or by a certificate of the Security Registrar.
Section 7.3 Holders to Be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security of any series shall be registered upon the
Security Register for such series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and, sub-
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ject to the provisions of Section 2.7 of this Indenture, interest, if any, on
such Security and for all other purposes; and none of the Issuer, the Trustee
and any agent of the Issuer or the Trustee shall be affected by any notice to
the contrary. All such payments so made to any such Person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Security.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depository shall have any rights under this Indenture
with respect to such Global Security, and such Depository may be treated by the
Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depository and such
holders of beneficial interests, the operation of customary practices governing
the exercise of the rights of the Depository as holder of any Security.
Section 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of one or more series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purposes of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities which the Trustee knows are
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 Issuer or any other obligor upon
such Securities or any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on such Securities. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision made by the
Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Issuer to be owned or held
by or for the account of any of the above described Persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not
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listed therein are Outstanding for the purposes of any such determination.
Section 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the requisite percentage in
aggregate principal amount of the Securities of one or more series, as the case
may be, specified in this Indenture in connection with such action, any Holder
of a Security the serial number of which is shown by the evidence to be
included among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of ownership as provided in Section 7.2, revoke such
action so far as concerns such Security. Except as aforesaid, any such action
taken by the Holder of any Security of any series shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Security and of any Securities of such series issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the requisite percentage in aggregate
principal amount of the Securities of one or more series, as the case may be,
specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities of such series.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of the execution thereof) for one
or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the
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covenants, agreements and obligations of the Issuer pursuant to
Article Nine;
(c) to add to the covenants of the Issuer 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) such further covenants, restrictions,
conditions or provisions as the Issuer and the Trustee shall consider
to be for the protection of the Holders of Securities of any series
and to make the occurrence, or the occurrence and continuance, of a
default in complying with any such additional covenant, restriction,
condition or provision an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture as
herein set forth; in respect of any such additional covenant,
restriction, condition or provision, 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 an
Event of Default or may limit the remedies available to the Trustee
upon such an Event of 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 an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions as
the Issuer may deem necessary or desirable, with respect to matters or
questions arising under this Indenture, provided that no such action
shall adversely affect the interests of the Holders of the Securities
of any series appertaining thereto;
(e) to establish the form and terms of the Securities of any
series as permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one trustee, all as provided in Section
6.11.
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The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
or assets thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
Section 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series at the time Outstanding affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution of
the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series; provided that no such supplemental indenture
shall (a) change the time of payment of the principal, or any installment of
the principal, of any Security or reduce the principal amount thereof, or
reduce the rate or change the time of payment of interest, if any, thereon, or
reduce any amount payable on the redemption thereof, or make the principal
thereof or the interest thereon payable in any coin or currency other than that
provided in such Security in accordance with the terms thereof or impair or
affect the right to institute suit for the payment thereof when due, or, if
such Security shall so provide, any right of repayment at the option of the
Holder, in each case without the consent of the Holder of each Security so
affected, (b) reduce the percentage in principal amount of the Outstanding
Securities of the affected series, the consent of whose Holders is required for
any such supplemental indenture or for any waiver provided for in this
Indenture, without the consent of the Holders of each Security so affected or
(c) without the consent of the Holders of each Security so affected, modify any
of the provisions of this Section or Section 5.10, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be
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modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of Sections 6.11
and 8.1(f).
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 series of Securities, or which modifies
the rights of the Holders of Securities of such series appertaining to such
Securities with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series.
Upon the request of the Issuer, accompanied by a Board
Resolution complying with the first paragraph of this Section and evidence of
the consent of the Holders of the Securities as aforesaid and such other
documents, if any, as may be required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof to the Holders of then Outstanding Securities
of each series affected thereby, by mailing a notice thereof by first-class
mail to such Holders at their addresses as they shall appear on the Security
Register, and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be
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determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article complies with the
applicable provisions of this Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee as to any matter
provided for by such supplemental indenture. If the Issuer or the Trustee
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared and
executed by the Issuer, authenticated by the Trustee and delivered in exchange
for the Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Covenant of Issuer Not to Merge, Consolidate,
Sell or Convey Property Except Under Certain Conditions. Nothing contained in
this Indenture or in any of the Securities shall prevent any consolidation of
the Issuer with, or merger of the Issuer into, any other corporation or
corporations (whether or not affiliated with the Issuer), or successive
consolidations or mergers to which the Issuer or its successor or successors
shall be a party or parties, shall prevent any sale, lease or conveyance of the
property of the Issuer as an entirety or substantially as an entirety, shall
prevent any consolidation of any Person with, or the merger of any Person into,
the Issuer or shall prevent any sale, lease or conveyance of the property of
any Person as an entirety or substantially as an entirety to the Issuer;
provided, that, and the Issuer hereby covenants and agrees, upon any such
consolidation, merger, sale, lease or conveyance, the due and punctual payment
of the principal of and interest, if any, on all the Securities, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Issuer, shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee,
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executed and delivered to the Trustee by the corporation formed by such
consolidation, or into which the Issuer shall have been merged, or which shall
have acquired such property; provided, further, that the corporation formed by
such consolidation or into which the Issuer merged or the Person which acquired
by conveyance or sale, or which leases, the properties and assets of the Issuer
as an entirety or substantially as an entirety shall be a corporation organized
and existing under the laws of the United States of America, any State thereof
or the District of Columbia; provided, further, that immediately after giving
effect to such transaction, and treating any indebtedness which becomes an
obligation of the Issuer or a Subsidiary as a result of such transaction as
having been incurred by the Issuer or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; provided, further, if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or assets of the
Issuer would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the Issuer or
such successor corporation or Person, as the case may be, shall take such steps
as shall be necessary effectively to secure the Securities equally and ratably
with (or prior to) all indebtedness secured thereby.
Section 9.2 Successor Corporation Substituted for Issuer. In
case of any consolidation, merger, sale, lease or conveyance referred to in,
and in accordance with, Section 9.1, and following such an assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein
as Issuer.
Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Issuer prior to such
succession, any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Issuer and delivered to the Trustee; and,
upon the order of such successor corporation, instead of the Issuer, 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
Issuer 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 of 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.
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In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease), the Issuer or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this Indenture and
the Securities and may be liquidated and dissolved.
Section 9.3 Opinion of Counsel Delivered to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture and that
all conditions precedent herein provided for relating to such transactions have
been complied with.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture. (A)
If at any time (a) the Issuer shall have paid or caused to be paid the
principal of and, premium and interest, if any, on all the Securities of each
series theretofore authenticated, (other than Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9), in accordance with the terms of this Indenture and such
Securities or (b) as to Securities not so paid, the Issuer shall have delivered
to the Trustee for cancellation all Securities of each series theretofore
authenticated (other than any Securities which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in
Section 2.9) or (c) as to Securities not so paid or delivered for cancellation,
(i) all the Securities of such series shall have become due and payable, or are
by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and (ii) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as trust
funds money in an amount (other than moneys repaid by the Trustee or any paying
agent to the Issuer in accordance with Section 10.4) or Government Obligations,
maturing as to principal and interest at such times and in such amounts as will
insure the availability of money, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public
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accountants expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal, and premium and interest, if any, on all
Securities of such series on each date that such principal, and premium or
interest, if any, is due and payable and (B) any mandatory sinking fund or
analogous payments on the dates on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities of such series;
and if, in any such case, the Issuer shall also pay or cause to be paid all
other sums payable hereunder by the Issuer then this Indenture shall cease to
be of further effect (except as to (i) rights of registration of transfer and
exchange of Securities, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (iii) the rights of Holders of Securities to
receive payments of principal thereof, and premium and interest, if any,
thereon, upon the original stated due dates therefor or any date of redemption
(but not upon acceleration), and remaining rights of such Holders to receive
mandatory sinking fund or analogous payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
Holders of Securities as beneficiaries hereof with respect to the property so
deposited with the Trustee and payable to all or any of them and (vi) the
obligations of the Issuer under Section 3.2) and the Trustee, on demand of the
Issuer accompanied by 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, and at
the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction and discharge of this Indenture, provided that
the rights of Holders of the Securities to receive amounts in respect of
principal of and interest on the Securities held by them shall not be delayed
longer than required by then - applicable mandatory rules or policies of any
national securities exchange upon which the Securities are listed. The Issuer
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in the Board Resolution,
Officers' Certificate or supplemental indenture relating thereto provided
pursuant to Section 2.3. In addition to discharge of this Indenture pursuant
to the next preceding paragraph (A) the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such series on the
91st day after the date of making the deposit referred to in clause (a), and
the provisions of this Indenture with respect to the Securities of such series
shall no longer be in effect (except as to (i) rights of registration of
transfer and exchange of Securities of such series, (ii) substitution of
mutilated, defaced, destroyed, lost or
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stolen Securities, (iii) the rights of Holders of Securities of such series
appertaining thereto to receive payments of principal thereof and interest, if
any, thereon, upon the original stated due dates therefor or any date of
redemption (but not upon acceleration), and remaining rights of such Holders to
receive mandatory sinking fund or analogous payments, if any, solely from the
trust fund referred to in subparagraph (a) below, (iv) the rights, obligations,
duties and immunities of the Trustee hereunder, (v) the rights of Holders of
Securities of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee and payable to all or any of them and (vi) the
obligations of the Issuer under Section 3.2), and the Trustee, at the cost and
expense of the Issuer, shall, at the Issuer's request, execute proper
instruments acknowledging the same, if:
(a) the Issuer shall have irrevocably deposited or caused to
be irrevocably deposited with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or
(ii) Government Obligations, maturing as to principal and interest at
such times and in such amounts as will insure the availability of
money, or (iii) a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
(A) the principal, premium and interest, if any, on all Securities of
such series on each date that such principal, premium or interest, if
any, is due and payable and (B) any mandatory sinking fund or
analogous payments on the dates on which such payments are due and
payable in accordance with the terms of this Indenture and the
Securities of such series;
(b) no Event of Default or event which, with notice or lapse
of time or both, would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(c) such deposit shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Issuer is a party or by
which it is bound;
(d) such deposit shall not cause any Securities of such
series then listed on any national securities
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exchange registered under the Securities Exchange Act of 1934, as
amended, to be delisted;
(e) the Issuer shall have delivered to the Trustee an Opinion
of Counsel to the effect that (i) if such deposits shall include
Government Obligations in respect of any government other than the
United States of America, such deposit shall not result in the Issuer,
the Trustee or such trust constituting an "investment company" under
the Investment Company Act of 1940, as amended, and (ii) the Holders
of the Securities of such series then Outstanding will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred; and
(f) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this paragraph have been complied with.
Section 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys and Government
Obligations deposited with the Trustee (or other trustee), and all money
received by the Trustee in respect of Government Obligations deposited with the
Trustee, pursuant to Section 10.1 in respect of the Outstanding Securities of a
particular series shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer acting as its
own paying agent), to the Holders of such Securities of all sums due and to
become due thereon for principal and interest, if any; but such money need not
be segregated from other funds except to the extent required by law.
Section 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to the Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
Section 10.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Three Years. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest, if
any, on any Security of any series and not applied but remaining unclaimed for
three years
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after the date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee or such paying
agent, and any Holder of the Securities of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being required
to make any such repayment with respect to moneys deposited with it for any
payment shall at the expense of the Issuer, mail by first-class mail to Holders
of such Securities at their addresses as they shall appear on the Security
Register for the Securities of such series, notice that such moneys remain and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing any unclaimed balance of such moneys then remaining
will be repaid to the Issuer.
Section 10.5 Indemnity for Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
Government Obligations, other than any such tax, fee or other charge which by
law is for the account of the Holders of the Securities for whose benefit such
Government Obligations are held.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any Securities of a series which have
the benefit of a sinking fund, except as otherwise specified as contemplated by
Section 2.3 for Securities of any series.
Section 11.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Securities of any series to be redeemed
as a whole or in part shall be given by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption, to such Holders at their last addresses
as they shall appear upon the registry books for such Securities. Any notice
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives the notice. Failure
to give
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notice by mail, or any defect in the notice to the Holder of any Security of
any series designated for redemption as a whole or in part, shall not affect
the validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify (a)
the principal amount of each Security of such series held by such Holder to be
redeemed, (b) the date fixed for redemption, (c) the redemption price, (d) that
such redemption is pursuant to the mandatory or optional sinking or other
analogous fund, or both, if such be the case, (e) that interest accrued to the
date fixed for redemption will be paid as specified in such notice and (f) that
on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Security is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in authorized denominations for an aggregate principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the redemption date all the
Securities of any series so called for redemption at the applicable redemption
price, together with accrued interest to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 60 days prior to the date fixed for
redemption an Officers' Certificate stating such date, the aggregate principal
amount of Securities of each series to be redeemed and that no Events of
Default with respect to the Securities of such series have occurred (which have
not been waived or cured). In case of a redemption at the option of the Issuer
prior to the expiration of any restriction on such redemption, the Issuer shall
deliver to the Trustee, prior to the giving of any notice of redemption to
Holders pursuant to this Section, an Officers' Certificate stating that such
restriction has been complied with. If less than all the Securities of any
series are to be redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Securities of such series to be redeemed in whole or
in part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee
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shall promptly notify the Issuer in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 11.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as provided in Section 11.2, the Securities
or portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the applicable redemption price, together with interest accrued
to said date) interest on the Securities or portions of Securities so called
for redemption shall cease to accrue and, except as provided in Sections 6.5
and 10.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except
the right to receive the applicable redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender
of such Securities at a place of payment specified in said notice, redemption,
such Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by such Security.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 11.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at
least 60 days
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prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer or (b) an entity specifically identified in such Officers'
Certificate as an Affiliate of the Issuer.
Section 11.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officers' Certificate (which need not contain the statements required by
Section 14.5) (a) specifying the portion of the mandatory sinking fund payment
due on such date to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such series and the basis for such credit,
(b) stating that none of the Securities of such series to be so credited has
theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such series have occurred and are
continuing (which have not been waived or cured) and (d) stating whether or not
the Issuer intends to exercise its right to make an optional sinking fund
payment on such date with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date. Any Securities of
such series to be so credited and required to be delivered to the Trustee in
order
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for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable, and upon its receipt by the Trustee the
Issuer shall become unconditionally obligated to make all the cash payments or
other deliveries therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Issuer, on or before any such 60th
day, to deliver such Officers' Certificate and securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such 60th day, the irrevocable election of the Issuer that (i) the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) the
Issuer will make no optional sinking fund payment with respect to such series
on such date as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 and if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the applicable sinking fund redemption price, together with accrued
interest to the date fixed for redemption. If such amount shall be $50,000 or
less and the Issuer makes no such request, then such amount shall be carried
over until a sum in excess of $50,000 is available. The Trustee shall select,
in the manner provided in Section 11.2, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by
the Issuer) inform the Issuer of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to
the Trustee at least 40 days prior to the sinking fund payment date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer or (b) an entity specifically identified in such Officers'
Certificate as an Affiliate of the Issuer. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee in
writing), shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 11.2 (and with the
effect provided in Section 11.3) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any sinking fund
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payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of a particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series, shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of and interest on the Securities of such series at maturity.
Unless otherwise provided for, on or before each sinking fund
payment date, the Issuer shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed
Securities of any series with sinking fund moneys or give any notice of
redemption of Securities of such series by operation of the sinking fund for
such series during the continuance of any Event of Default with respect to such
series except that, if notice of redemption of any Securities of such series
shall theretofore have been given, the Trustee shall redeem or cause to be
redeemed such Securities, provided that the Trustee or one or more paying
agents shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such Event of Default shall occur, and any moneys
thereafter paid into the sinking fund, shall, during the continuance of such
Event of Default, be deemed to have been collected under Article Five and held
for the payment of all Securities of such series. In case such Event of
Default shall have been waived as provided in Section 5.10 or such Event of
Default cured on or before the 60th day preceding any sinking fund payment
date, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date in accordance with this Section to the redemption of
Securities of such series.
ARTICLE TWELVE
SUBORDINATION
Section 12.1 Applicability of Article; Securities
Subordinated to Senior Indebtedness. (a) This Article Twelve shall apply only
to the Securities of any series which, pursuant to Section 2.3, are expressly
made subject to this Article. Such
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Securities are referred to in this Article Twelve as "Subordinated Securities."
(b) The Issuer covenants and agrees, and each Holder of
Subordinated Securities by his acceptance thereof likewise covenants and
agrees, that the indebtedness represented by the Subordinated Securities and
the payment of the principal, premium and interest, if any, on the Subordinated
Securities is subordinated and subject in right, to the extent and in the
manner provided in this Article, to the prior payment in full of all Senior
Indebtedness.
"Senior Indebtedness" means the principal of and premium, if
any, and interest on the following, whether outstanding on the date hereof or
thereafter incurred, created or assumed: (i) indebtedness of the Issuer for
money borrowed by the Issuer (including purchase money obligations or evidenced
by debentures (other than the Subordinated Securities), notes, bankers'
acceptances or other corporate debt securities, or similar instruments issued
by the Issuer); (ii) all capital lease obligations of Consumers; (iii) all
obligations of Consumers issued or assumed as the deferred purchase price of
property, all conditional sale obligations of Consumers and all obligations of
Consumers under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) obligations with
respect to letters of credit; (v) all indebtedness of others of the type
referred to in the preceding clauses (i) through (iv) assumed by or guaranteed
in any manner by the Issuer or in effect guaranteed by the Issuer; (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
persons secured by any lien on any property or asset of Consumers (whether or
not such obligation is assumed by Consumers), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu with the
Subordinated Notes, as the case may be, including all other debt securities,
issued to any other trusts, partnerships or other entities affiliated with
Consumers which act as a financing vehicle of Consumers in connection with the
issuance of preferred securities by such entity or other securities which rank
pari passu with, or junior to, the Preferred Securities, and (2) any
indebtedness between or among Consumers and its affiliates and/or (vii)
renewals, extensions or refundings of any of the indebtedness referred to in
the preceding clauses unless, in the case of any particular indebtedness,
renewal, extension or refunding, under the express provisions of the instrument
creating or evidencing the same or the assumption or guarantee of the same, or
pursuant to which the same is outstanding such indebtedness or such renewal,
extension or refunding thereof is not superior in right of payment to the
Subordinated Securities.
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This Article shall constitute a continuing obligation to all
Persons who, in reliance upon such provisions become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder
and they and/or each of them may enforce such provisions.
Section 12.2 Issuer Not to Make Payments with Respect to
Subordinated Securities in Certain Circumstances. (a) Upon the maturity of any
Senior Indebtedness by lapse of time, acceleration or otherwise, all principal
thereof, premium thereon and interest thereon shall first be paid in full, or
such payment duly provided for in cash in a manner satisfactory to the holders
of such Senior Indebtedness, before any payment is made on account of the
principal of or premium or interest on Subordinated Securities or to acquire
any Subordinated Securities or on account of any sinking fund provisions of any
Subordinated Securities (except payments made in capital stock of the Issuer or
in warrants, rights or options to purchase or acquire capital stock of the
Issuer, sinking fund payments made in Subordinated Securities acquired by the
Issuer before the maturity of such Senior Indebtedness, and payments made
through the exchange of other debt obligations of the Issuer for such
Subordinated Securities in accordance with the terms of such Subordinated
Securities, provided that such debt obligations are subordinated to Senior
Indebtedness at least to the extent that the Subordinated Securities for which
they are exchanged are so subordinated pursuant to this Article Twelve).
(b) Upon the happening and during the continuation of any
default in payment of the principal of, premium, if any, or interest on any
Senior Indebtedness when the same becomes due and payable or in the event any
judicial proceeding shall be pending with respect to any such default, then,
unless and until such default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by the Issuer with respect to the
principal of or premium or interest on Subordinated Securities or to acquire
any Subordinated Securities or on account of any sinking fund provisions of
Subordinated Securities (except payments made in capital stock of the Issuer or
in warrants, rights, or options to purchase or acquire capital stock of the
Issuer, sinking fund payments made in Subordinated Securities acquired by the
Issuer before such default and notice thereof, and payments made through the
exchange of other debt obligations of the Issuer for such Subordinated
Securities in accordance with the terms of such Subordinated Securities,
provided that such debt obligations are subordinated to Senior Indebtedness at
least to the extent that the Subordinated Securities for which they are
exchanged are so subordinated pursuant to this Article Twelve).
(c) In the event that, notwithstanding the provisions of this
Section 12.2, the Issuer shall make any payment to the
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Trustee on account of the principal of or interest on Subordinated Securities,
or on account of any sinking fund provisions of such Securities, after the
maturity of any Senior Indebtedness as described in Section 12.2(a) above or
after the happening of a default in payment of the principal of or interest on
any Senior Indebtedness as described in Section 12.2(b) above, then, unless and
until all Senior Indebtedness which shall have matured, and all premium and
interest thereon, shall have been paid in full (or the declaration of
acceleration thereof shall have been rescinded or annulled), or such default
shall have been cured or waived or shall have ceased to exist, such payment
(subject to the provisions of Sections 12.6 and 12.7) shall be held by the
Trustee, in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of such Senior Indebtedness (pro rata as to each of
such holders on the basis of the respective amounts of Senior Indebtedness held
by them) or their representative or the trustee under the indenture or other
agreement (if any) pursuant to which such Senior Indebtedness may have been
issued, as their respective interests may appear, for application to the
payment of all such Senior Indebtedness remaining unpaid to the extent
necessary to pay the same in full in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness. The Issuer shall give prompt written notice to the
Trustee of any default in the payment of principal of or interest on any Senior
Indebtedness.
Section 12.3 Subordinated Securities Subordinated to Prior
Payment of All Senior Indebtedness on Dissolution, Liquidation or
Reorganization of Issuer. Upon any distribution of assets of the Issuer in any
dissolution, winding up, liquidation or reorganization of the Issuer (whether
voluntary or involuntary, in bankruptcy, insolvency or receivership proceedings
or upon an assignment for the benefit of creditors or otherwise):
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full of the principal thereof and
premium and interest due thereon, or provision shall be made for such
payment, before the Holders of Subordinated Securities are entitled to
receive any payment on account of the principal of or premium or
interest on such Securities;
(b) any payment or distribution of assets of the Issuer of
any kind or character, whether in cash, property or securities (other
than securities of the Issuer as reorganized or readjusted or
securities of the Issuer or any other corporation provided for by a
plan or reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article Twelve
with respect to Subordinated
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Securities, to the payment in full without diminution or modification
by such plan of all Senior Indebtedness), to which the Holders of
Subordinated Securities or the Trustee on behalf of the Holders of
Subordinated Securities would be entitled except for the provisions of
this Article Twelve shall be paid or delivered by the liquidating
trustee or agent or other person making such payment or distribution
directly to the holders of Senior Indebtedness or their
representative, or to the trustee under any indenture under which
Senior Indebtedness may have been issued (pro rata as to each such
holder, representative or trustee on the basis of the respective
amounts of unpaid Senior Indebtedness held or represented by each), to
the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution or provision thereof to the holders of such
Senior Indebtedness; and
(c) in the event that notwithstanding the foregoing provisions
of this Section 12.3, any payment or distribution of assets of the
Issuer of any kind or character, whether in cash, property or
securities (other than securities of the Issuer as reorganized or
readjusted or securities of the Issuer or any other corporation
provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in this
Article Twelve with respect to Subordinated Securities, to the payment
in full without diminution or modification by such plan of all Senior
Indebtedness), shall be received by the Trustee or the Holders of the
Subordinated Securities on account of principal of or premium or
interest on the Subordinated Securities before all Senior Indebtedness
is paid in full, or effective provision made for its payment, such
payment or distribution (subject to the provisions of Section 12.6 and
12.7) shall be received and held in trust for and shall be paid over
to the holders of the Senior Indebtedness remaining unpaid or
unprovided for or their representative, or to the trustee under any
indenture under which such Senior Indebtedness may have been issued
(pro rata as provided in subsection (b) above), for application to the
payment of such Senior Indebtedness until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent
payment or distribution or provision therefor to the holders of such
Senior Indebtedness.
The Issuer shall give prompt written notice to the Trustee of
any dissolution, winding up, liquidation or reorganization of the Issuer.
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The consolidation of the Issuer with, or the merger of the
Issuer into, another corporation or the liquidation or dissolution of the
Issuer 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 Nine hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 12.3 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated such in
Article Nine.
Section 12.4 Holders of Subordinated Securities to be
Subrogated to Right of Holders of Senior Indebtedness. Subject to the payment
in full of all Senior Indebtedness, the Holders of Subordinated Securities
shall be subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of assets of the Issuer applicable to the
Senior Indebtedness until all amounts owing on Subordinated Securities shall be
paid in full, and for the purposes of such subrogation no payments or
distributions to the holders of the Senior Indebtedness by or on behalf of the
Issuer or by or on behalf of the Holders of Subordinated Securities by virtue
of this Article Twelve which otherwise would have been made to the Holders of
Subordinated Securities shall, as between the Issuer, its creditors other than
holders of Senior Indebtedness and the Holders of Subordinated Securities, be
deemed to be payment by the Issuer to or on account of the Senior Indebtedness,
it being understood that the provisions of this Article Twelve are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Subordinated Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Section 12.5 Obligation of the Issuer Unconditional. Nothing
contained in this Article Twelve or elsewhere in this Indenture or in any
Subordinated Security is intended to or shall impair, as among the Issuer, its
creditors other than holders of Senior Indebtedness and the Holders of
Subordinated Securities, the obligation of the Issuer, which is absolute and
unconditional, to pay to the Holders of Subordinated Securities the principal
of and premium (if any) interest on 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 Subordinated
Securities and creditors of the Issuer other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
Holder of any 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 Twelve of the holders of Senior Indebtedness
in respect of cash, property or securities of the Issuer received upon the
exercise of any such remedy. Upon any payment or distribution of assets of the
Issuer referred to in this Article Twelve, the Trustee and Holders of
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 proceedings are pending, or, subject to the
provisions of Section 6.1 and 6.2, a certificate of the receiver, trustee in
bankruptcy, liquidating trustee or agent or other Person making such payment or
distribution to the Trustee or the Holders of Subordinated Securities, for the
purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Issuer, the amount thereof or payable
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thereon, the amount or amounts paid or distributed therein and all other facts
pertinent thereto or to this Article Twelve.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in any Subordinated Security is intended to or shall affect the
obligation of the Issuer to make, or prevent the Issuer from making, at any
time except during the pendency of any dissolution, winding up, liquidation or
reorganization proceeding, and, except as provided in subsections (a) and (b)
of Section 12.2, payments at any time of the principal of, premium, if any, or
interest on Subordinated Securities.
Section 12.6 Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice. The Issuer shall give prompt written notice
to the Trustee of any fact known to the Issuer which would prohibit the making
of any payment or distribution to or by the Trustee in respect of the
Subordinated Securities. Notwithstanding the provisions of this Article Twelve
or any provision of this Indenture, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment or distribution to or by the Trustee, unless at least two
Business Days prior to the making of any such payment, the Trustee shall have
received written notice thereof from the Issuer or from one or more holders of
Senior Indebtedness or from any representative thereof or from any trustee
therefor, together with proof satisfactory to the Trustee of such holding of
Senior Indebtedness or of the authority of such representative or trustee; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall be entitled to assume conclusively
that no such facts exist. The Trustee 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 Indebtedness (or a representative or trustee on behalf of the
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a representative of or trustee on behalf of any such holder).
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
Indebtedness to participate in any payments or distribution pursuant of this
Article Twelve, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such Person under this Article Twelve, 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.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and nothing in this Article Twelve shall apply
to
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claims of, or payments to, the Trustee under or pursuant to Section 6.6.
Section 12.7 Application by Trustee of Monies or Government
Obligations Deposited with It. Money or Government obligations deposited in
trust with the Trustee pursuant to and in accordance with Section 10.1 shall be
for the sole benefit of Securityholders and, to the extent allocated for the
payment of Subordinated Securities, shall not be subject to the subordination
provisions of this Article Twelve, if the same are deposited in trust prior to
the happening of any event specified in Section 12.2. Otherwise, any deposit
of monies or Government Obligations by the Issuer with the Trustee or any
paying agent (whether or not in trust) for the payment of the principal of,
premium, if any, or interest on any Subordinated Securities shall be subject to
the provisions of Section 12.1, 12.2 and 12.3 except that, if prior to the date
on which by the terms of this Indenture any such monies may become payable for
any purposes (including, without limitation, the payment of the principal of,
premium, if any, or the interest, if any, on any Subordinated Security) the
Trustee shall not have received with respect to such monies the notice provided
for in Section 12.6, then the Trustee or the paying agent shall have full power
and authority to receive such monies and Government Obligations and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such
date. This Section 12.7 shall be construed solely for the benefit of the
Trustee and paying agent and, as to the first sentence hereof, the
Securityholders, and shall not otherwise effect the rights of holders of Senior
Indebtedness.
Section 12.8 Subordination Rights Not Impaired by Acts or
Omissions of Issuer or Holders of Senior Indebtedness. No rights of any
present or future holders of any Senior Indebtedness to enforce subordination
as provided herein shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Issuer or by any act or failure to
act, in good faith, by any such holders or by any noncompliance by the Issuer
with the terms of this Indenture, regardless of any knowledge thereof which any
such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Issuer may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Subordinated Securities, without incurring responsibility to the
Holders of the Subordinated Securities and without impairing or releasing the
subordination provided in this Article Twelve or the obligations hereunder of
the Holders of the Subordinated Securities to the Holders of such Senior
Indebtedness, 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,
such Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any
manner for the collection for such Senior Indebtedness; and (iv) execised or
refrain from exercising any rights against the Issuer, as the case may be, and
any other Person.
Section 12.9 Securityholders Authorize Trustee to
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Effectuate Subordination of Securities. Each Holder of Subordinated Securities
by his acceptance thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Twelve and appoints the Trustee his
attorney-in-fact for such purpose, including in the event of any dissolution,
winding up, liquidation or reorganization of the Issuer (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise) the immediate filing of a claim for the unpaid balance
of his Subordinated Securities in the form required in said proceedings and
causing said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the
holders of Senior Indebtedness have the right to file and are hereby authorized
to file an appropriate claim for and on behalf of the Holders of said
Securities.
Section 12.10 Right of Trustee to Hold Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all of the rights
set forth in this Article Twelve in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Issuer, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Twelve,
and no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of Sections 12.2 and 12.3,
the Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to Holders of Subordinated Securities, the Issuer or
any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article Twelve or otherwise.
Section 12.11 Article Twelve Not to Prevent Events of
Defaults. The failure to make a payment on account of principal, premium, if
any, or interest by reason of any provision in this Article Twelve shall not be
construed as preventing the occurrence of an Event of Default under Section
5.1.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities
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appertaining thereto by the Holders thereof and as part of the consideration
for the issue of the Securities appertaining thereto.
Section 13.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities. Nothing in this Indenture, in the
Securities expressed or implied, shall give or be construed to give to any
Person other than the parties hereto and their successors and the Holders of
the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
Section 13.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture made by or on behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
Section 13.4 Notices and Demands on Issuer, Trustee and
Holders of Securities. Any notice, direction, request or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by any Holder of Securities of any series or upon the Issuer
shall be deemed to have been sufficiently given or served by being deposited
postage prepaid in the United States mail, first-class mail (except as
otherwise specifically provided herein), addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to Consumers Power Company,
212 West Michigan Avenue, Jackson, Michigan 49201, Attention: Secretary. Any
notice, direction, request or demand by the Issuer or any Holder of Securities
of any series or upon the Trustee shall be deemed to have been sufficiently
given or served by being deposited postage prepaid in the United States mail,
first-class mail (except as otherwise specifically provided herein), addressed
(until another address of the Trustee is filed by the Trustee with the Issuer)
to The Bank of New York, 101 Barclay New York, New York 10286. Any notice
required or permitted to be given or served by the Issuer or by the Trustee to
or upon any Holders of Securities of any series shall be deemed to have been
sufficiently given or served by being deposited in the United States mail,
first-class mail (except as otherwise specifically provided herein), addressed
at their addresses as they shall appear on the Security Register.
In any case where notice to the Holders of Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to
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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 or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice.
Section 13.5 Officers' Certificates and Opinions of Counsel;
Statements to be Contained Therein. Except as otherwise expressly provided by
this Indenture, upon any application or demand by the Issuer to the Trustee to
take any action under any of the provisions of this Indenture, the Issuer shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than certificates provided
pursuant to Section 4.3(d) or Section 11.5) shall include (a) a statement that
the individual signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto, (b) a brief statement as
to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (c)
a statement that, in the opinion of 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 (d) a statement as to whether or not, in the opinion of such
individual, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion of or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
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erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any such certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters, on information with respect to which
is in the possession of the Issuer, upon the certificate, statement or opinion
of or representations by an officer or officers of the Issuer, unless such
counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 13.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or the date fixed for redemption or repayment of any such Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of such interest or principal need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the date of maturity or the date fixed
for redemption or repayment, and no interest shall accrue for the period from
and after such date except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
Section 13.7 Conflict of any Provision of Indenture with
Trust Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with any provision set forth in
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, that impose
duties on any person, such provision of the Trust Indenture Act of 1939 shall
control.
Section 13.8 Governing Law. This Indenture and each
Security shall be governed by and deemed to be a contract under, and construed
in accordance with, the laws of the
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State of Michigan, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law, provided, however, that the rights, duties and obligations
of the Trustee are governed and construed in accordance with the laws of the
State of New York.
Section 13.9 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 13.10 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 13.11 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.
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90
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of ___________, 1995.
Consumers Power Company
By
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Title:
[CORPORATE SEAL]
Attest:
By
----------------------
Title:
THE BANK OF NEW YORK,TRUSTEE
By
----------------------------
Title:
[CORPORATE SEAL]
Attest:
By
--------------------------
Title:
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