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CAROLINA POWER & LIGHT COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
------------
INDENTURE
(FOR DEBT SECURITIES)
DATED AS OF OCTOBER 28,1999
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TABLE OF CONTENTS*
PARTIES......................................................................................................... 1
RECITAL OF THE COMPANY............................................................................................1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................1
Section 101. Definitions.................................................................................1
Section 102. Compliance Certificates and Opinions........................................................8
Section 103. Form of Documents Delivered to Trustee......................................................9
Section 104. Acts of Holders............................................................................10
Section 105. Notices, Etc. to Trustee and Company.......................................................11
Section 106. Notice to Holders of Debt Securities; Waiver...............................................12
Section 107. Conflict with Trust Indenture Act..........................................................13
Section 108. Effect of Headings and Table of Contents...................................................13
Section 109. Successors and Assigns.....................................................................13
Section 110. Separability Clause........................................................................13
Section 111. Benefits of Indenture......................................................................13
Section 112. Governing Law..............................................................................13
Section 113. Legal Holidays.............................................................................13
ARTICLE II DEBT SECURITY FORMS..................................................................................14
Section 201. Forms Generally............................................................................14
Section 202. Form of Trustee's Certificate of Authentication............................................14
SECTION 203. DEBT SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY...........................................15
ARTICLE III THE DEBT SECURITIES.................................................................................17
Section 301. Amount Unlimited; Issuable in Series.......................................................17
Section 302. Denominations..............................................................................20
Section 303. Execution, Authentication, Delivery and Dating.............................................20
Section 304. Temporary Debt Securities..................................................................23
Section 305. Registration, Registration of Transfer and Exchange........................................24
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities......................................25
Section 307. Payment of Interest; Interest Rights Preserved.............................................26
Section 308. Persons Deemed Owners......................................................................27
- -----------------
* This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
(i)
Section 309. Cancellation by Debt Security Registrar....................................................27
Section 310. Computation of Interest....................................................................28
Section 311. Payment to be in Proper Currency...........................................................28
ARTICLE IV REDEMPTION OF DEBT SECURITIES........................................................................28
Section 401. Applicability of Article...................................................................28
Section 402. Election to Redeem; Notice to Trustee......................................................28
Section 403. Selection of Debt Securities to be Redeemed................................................29
Section 404. Notice of Redemption.......................................................................29
Section 405. Debt Securities Payable on Redemption Date.................................................31
Section 406. Debt Securities Redeemed in Part...........................................................31
ARTICLE V SINKING FUNDS.........................................................................................31
Section 501. Applicability of Article...................................................................31
Section 502. Satisfaction of Sinking Fund Payments with Debt Securities.................................32
Section 503. Redemption of Debt Securities for Sinking Fund.............................................32
ARTICLE VI COVENANTS............................................................................................33
Section 601. Payment of Principal, Premium and Interest.................................................33
Section 602. Maintenance of Office or Agency............................................................33
Section 603. Money for Debt Securities Payments to be Held in Trust.....................................34
Section 604. Corporate Existence........................................................................35
Section 605. Maintenance of Properties..................................................................35
Section 606. Annual Officer's Certificate as to Compliance..............................................35
Section 607. Waiver of Certain Covenants................................................................36
ARTICLE VII SATISFACTION AND DISCHARGE..........................................................................36
Section 701. Satisfaction and Discharge of Debt Securities..............................................36
Section 702. Satisfaction and Discharge of Indenture....................................................39
Section 703. Application of Trust Money.................................................................39
ARTICLE VIII EVENTS OF DEFAULT; REMEDIES........................................................................40
Section 801. Events of Default..........................................................................40
Section 802. Acceleration of Maturity; Rescission and Annulment.........................................41
Section 803. Collection of Indebtedness and Suits for Enforcement by Trustee............................43
Section 804. Trustee May File Proofs of Claim...........................................................43
Section 805. Trustee May Enforce Claims Without Possession of Debt Securities...........................44
Section 806. Application of Money Collected.............................................................44
Section 807. Limitation on Suits........................................................................44
Section 808. Unconditional Right of Holders to Receive Principal, Premium and Interest..................45
Section 809. Restoration of Rights and Remedies.........................................................45
(ii)
Section 810. Rights and Remedies Cumulative.............................................................46
Section 811. Delay or Omission Not Waiver...............................................................46
Section 812. Control by Holders of Debt Securities......................................................46
Section 813. Waiver of Past Defaults....................................................................46
Section 814. Undertaking for Costs......................................................................47
Section 815. Waiver of Stay or Extension Laws...........................................................47
ARTICLE IX THE TRUSTEE..........................................................................................48
Section 901. Certain Duties and Responsibilities........................................................48
Section 902. Notice of Defaults.........................................................................49
Section 903. Certain Rights of Trustee..................................................................49
Section 904. Not Responsible for Recitals or Issuance of Debt Securities................................51
Section 905. May Hold Debt Securities...................................................................51
Section 906. Money Held in Trust........................................................................51
Section 907. Compensation and Reimbursement.............................................................52
Section 908. Disqualification; Conflicting Interests....................................................53
Section 909. Corporate Trustee Required; Eligibility....................................................53
Section 910. Resignation and Removal; Appointment of Successor..........................................53
Section 911. Acceptance of Appointment by Successor.....................................................55
Section 912. Merger, Conversion, Consolidation or Succession to Business................................56
Section 913. Preferential Collection of Claims Against Company..........................................57
Section 914. Co-trustees and Separate Trustees..........................................................57
Section 915. Appointment of Authenticating Agent........................................................58
ARTICLE X HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY......................................................60
Section 1001. Lists of Holders..........................................................................60
Section 1002. Reports by Trustee and Company............................................................61
ARTICLE XI CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER..................................................62
Section 1101. Company May Consolidate, Etc., Only on Certain Terms......................................62
Section 1102. Successor Corporation Substituted.........................................................62
ARTICLE XII SUPPLEMENTAL INDENTURES.............................................................................63
Section 1201. Supplemental Indentures Without Consent of Holders........................................63
Section 1202. Supplemental Indentures With Consent of Holders...........................................65
Section 1203. Execution of Supplemental Indentures......................................................66
Section 1204. Effect of Supplemental Indentures.........................................................66
Section 1205. Conformity With Trust Indenture Act.......................................................66
Section 1206. Reference in Debt Securities to Supplemental Indentures...................................67
Section 1207. Modification Without Supplemental Indenture...............................................67
(iii)
ARTICLE XIII MEETINGS OF HOLDERS; ACTION WITHOUT MEETING........................................................67
Section 1301. Purposes for Which Meetings May be Called.................................................67
Section 1302. Call, Notice and Place of Meetings........................................................67
Section 1303. Persons Entitled to Vote at Meetings......................................................68
Section 1304. Quorum; Action............................................................................68
Section 1305. Attendance at Meetings; Determination of Voting Rights; Conduct and Adjournment
of Meetings...........................................................................69
Section 1306. Counting Votes and Recording Action of Meetings...........................................70
Section 1307. Action Without Meeting....................................................................71
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.....................................71
Section 1401. Liability Solely Corporate................................................................71
TESTIMONIUM......................................................................................................71
SIGNATURE AND SEALS...............................................................................................1
(iv)
CAROLINA POWER & LIGHT COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF OCTOBER 28, 1999
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310 (a)(1) ...................................................................... 909
(a)(2) ...................................................................... 909
(a)(3) ...................................................................... 914
(a)(4) ...................................................................... Not Applicable
(b) ...................................................................... 908
910
ss.311 (a) ...................................................................... 913
(b) ...................................................................... 913
(c) ...................................................................... 913
ss.312 (a) ...................................................................... 1001
(b) ...................................................................... 1001
(c) ...................................................................... 1001
ss.313 (a) ...................................................................... 1002
(b) ...................................................................... 1002
(c) ...................................................................... 1002
(d) ...................................................................... 1002
ss.314 (a) ...................................................................... 1002
(a)(4) ...................................................................... 606
(b) ...................................................................... Not Applicable
(c)(1) ...................................................................... 102
(c)(2) ...................................................................... 102
(c)(3) ...................................................................... Not Applicable
(d) ...................................................................... Not Applicable
(e) ...................................................................... 102
ss.315 (a) ...................................................................... 901
903
(b) ...................................................................... 902
(c) ...................................................................... 901
(d) ...................................................................... 901
(e) ...................................................................... 814
ss.316 (a) ...................................................................... 812
...................................................................... 813
(a)(1)(A)...................................................................... 802
812
(a)(1)(B)...................................................................... 813
(a)(2) ...................................................................... Not Applicable
(b) ...................................................................... 808
ss.317 (a)(1) ...................................................................... 803
(a)(2) ...................................................................... 804
(b) ...................................................................... 603
ss.318 (a) ...................................................................... 107
(v)
INDENTURE, dated as of October 28, 1999, between CAROLINA
POWER & LIGHT COMPANY, a corporation duly organized and existing under the laws
of the State of North Carolina (herein called the "Company"), having its
principal office at 411 Fayetteville Street, Raleigh, North Carolina 27601-1748,
and The Chase Manhattan BANK, a banking corporation organized under the laws of
the State of New York, having its principal corporate trust office at 450 West
33rd Street, New York, New York 10001, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior
unsubordinated, unsecured notes (herein called the "Debt Securities"), in an
unlimited aggregate principal amount, to be issued in one or more series as
contemplated herein; and all acts necessary to make this Indenture a valid
agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires, capitalized terms
used herein shall have the meanings assigned to them in Article One of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Debt Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Debt
Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all terms used herein without definition which are defined
in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally
1
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the date of such
computation or, at the election of the Company from time to time, at
the date of the execution and delivery of this Indenture; provided,
however, that in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent required,
conform to any order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having jurisdiction
over the Company; and
(d) the words "herein", "hereof " and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined
in that Article.
"ACT", when used with respect to any Holder of a Debt
Security, has the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee pursuant to
Section 915 to act on behalf of the Trustee to authenticate one or more series
of Debt Securities or Tranche thereof.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer or any other duly authorized
officer of the Company.
"BOARD OF DIRECTORS" means either the board of directors of
the Company or any committee thereof duly authorized to act or any director or
directors and/or officer or officers of the Company to whom that board or
committee shall have duly delegated its authority in respect of matters relating
to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment
or any other particular location specified in the Debt Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is not a day on
which banking institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation or
2
executive order to remain closed, except as may be otherwise specified as
contemplated by Section 301.
"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 date of execution and delivery of this
Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, performing such
duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by an Authorized Officer and
delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at 450 West 33rd Street, New York, New York 10001.
"CORPORATION" means a corporation, association, company,
limited liability company, joint stock company or business trust.
"DEBT SECURITIES" has the meaning stated in the first recital
of this Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"DEBT SECURITY REGISTER" and "DEBT SECURITY REGISTRAR" have
the respective meanings specified in Section 305.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEPOSITORY" shall mean, with respect to Debt Securities of
any series, for which the Company shall determine that such Debt Securities will
be issued as a Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section 203(d).
"DESIGNATED TRUSTEE OFFICE" means any office or offices of the
Trustee or any Affiliate, servicer or other agent of the Trustee from time to
time established by the Trustee in its discretion as the location at which
particular actions or functions (for example, registration of securities and
paying agent responsibilities) will occur. The Trustee shall, upon the written
request of the Company or any Holder, provide the Company or such Holder with a
written list of its Designated Trustee Offices hereunder, but, in the absence of
such written request or unless otherwise provided herein or unless necessary for
the proper performance by the Trustee of its responsibilities hereunder, the
Trustee may establish and change its Designated Trustee Offices hereunder
without notice to the Company or any Holder.
3
"DISCOUNT DEBT SECURITY" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 802. "INTEREST" with respect to a Discount Debt Security means interest,
if any, borne by such Debt Security at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Debt Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Debt Securities denominated in a currency
other than Dollars or in a composite currency, such other obligations
or instruments as shall be specified with respect to such Debt
Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"GLOBAL SECURITY" shall mean, with respect to the Debt
Securities, a Debt Security executed by the Company and delivered by the Trustee
to the Depository or pursuant to the Depository's instruction, all in accordance
with this Indenture, which shall be registered in the name of the Depository or
its nominee.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of any thereof, or any
department, agency, authority or other instrumentality of any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal payments due
in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a bank
or trust company (which may include the Trustee or any Paying Agent)
subject to Federal or state supervision or examination with a combined
capital and surplus of at least $100,000,000; and provided, further,
that except as may be otherwise required by law, such custodian shall
be obligated to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by such
custodian in respect of
4
such obligations or specific payments and shall not be permitted to
make any deduction therefrom.
"HOLDER" means a Person in whose name a Debt Security is
registered in the Debt Security Register.
"INDEMNITEES" has the meaning given in Section 907.
"INDENTURE" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or amended by one or
more indentures or Officer's Certificates supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the terms of
particular series of Debt Securities established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any Debt
Security, means the Stated Maturity of an installment of interest on such Debt
Security.
"LOSSES" has the meaning given in Section 907.
"MATURITY", when used with respect to any Debt Security, means
the date on which the principal of such Debt Security or an installment of
principal becomes due and payable as provided in such Debt Security or in this
Indenture, whether at the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company, or other counsel acceptable to the Trustee.
"OUTSTANDING", when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Debt Securities theretofore canceled by the Trustee or the
Debt Security Registrar or delivered to the Trustee or the Debt
Security Registrar for cancellation;
(b) Debt Securities deemed to have been paid in accordance
with Section 701; and
(c) Debt Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it and the Company that
such Debt Securities are held by a bona fide purchaser or purchasers in
whose hands such Debt Securities are valid obligations of the Company;
5
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Debt Securities Outstanding under this
Indenture, or the Outstanding Debt Securities of any series or Tranche, have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or whether or not a quorum is present at a meeting of Holders of Debt
Securities,
(x) Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any Affiliate of the
Company or of such other obligor (unless the Company, such
Affiliate or such obligor owns all Debt Securities Outstanding
under this Indenture, or all Outstanding Debt Securities of
each such series and each such Tranche, as the case may be,
determined without regard to this clause (x)) shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Debt Securities which the
Trustee knows to be so owned shall be so disregarded;
provided, however, that Debt 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 Debt Securities
and that the pledgee is not the Company or any other obligor
upon the Debt Securities or any Affiliate of the Company or of
such other obligor; and
(y) the principal amount of a Discount Debt Security
that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
provided, further, that, in the case of any Debt Security the principal of which
is payable from time to time without presentment or surrender, the principal
amount of such Debt Security that shall be deemed to be Outstanding at any time
for all purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if any, or
interest, if any, on any Debt Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Debt Securities of a
series from time to time any or all of the specific terms of which Debt
Securities, including without limitation the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company or
its agents upon the issuance of such Debt Securities.
"PERSON" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental Authority.
6
"PLACE OF PAYMENT", when used with respect to the Debt
Securities of any series, or Tranche thereof, means the place or places,
specified as contemplated by Section 301, at which, subject to Section 602,
principal of and premium, if any, and interest, if any, on the Debt Securities
of such series or Tranche are payable.
"PREDECESSOR DEBT SECURITY" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the same debt
as that evidenced by such particular Debt Security; and, for the purposes of
this definition, any Debt Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Debt
Security shall be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Debt Security.
"REDEMPTION DATE", when used with respect to any Debt Security
to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Debt
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Debt Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Debt Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear interest. Any
calculation or other determination to be made under this Indenture by reference
to the Stated Interest Rate on a Debt Security shall be made without regard to
the effective interest cost to the Company of such Debt Security and without
regard to the Stated Interest Rate on, or the effective cost to the Company of,
any other indebtedness in respect of which the Company's obligations are
evidenced or secured in whole or in part by such Debt Security.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions for
redemption, prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Debt Securities which (a) are of
the same series and (b) have identical terms except as to principal amount.
7
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as
in force and effect as of the date of execution of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is succeeded by
another statute or is amended after such date, "Trust Indenture Act" shall mean
such successor statute or the Trust Indenture Act of 1939, as so amended, to the
extent such successor statute or amendment is applicable to this Indenture or to
the actions of the Company or the Trustee under or pursuant to this Indenture.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Debt Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Debt Securities of
any series shall mean the Trustee with respect to Debt Securities of that
series.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
8
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion are
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, (except to the extent that such action was
a result of willful misconduct or bad faith or had or could be expected to have
a material adverse effect on the Holders of any Debt Securities issued
hereunder). Without limiting the generality of the foregoing, any Debt
Securities issued under the authority of such defective document or instrument
shall nevertheless be the valid obligations of the Company entitled to the
benefits of this Indenture equally and ratably with all other Outstanding Debt
Securities.
9
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture
to be made, given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held
in accordance with the provisions of Article Thirteen, or a
combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner provided
in this Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof or may be proved in any other manner which
the Trustee and the Company deem sufficient. Where such execution is
by a signer acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The principal amount (except as otherwise contemplated in
clause (y) of the proviso to the definition of Outstanding) and serial
numbers of Debt Securities held by any Person, and the date of holding
the same, shall be proved by the Debt Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Debt Security and the Holder of every Debt
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon
such Debt Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Debt Securities for the action contemplated by
such instruments, any such instrument executed and delivered by or on
behalf of a Holder may be revoked with respect to any or all of such
Debt
10
Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Debt Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of Holders. If the Company
shall so determine, new Debt Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and
the Company, to such action may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the
Outstanding Debt Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Debt
Securities shall be computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with, the Trustee by any Holder or by the Company, or the Company by the Trustee
or by any Holder, shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and delivered personally to
an officer or other responsible employee of the addressee, or transmitted by
facsimile transmission or other direct written electronic means to such
telephone number or other electronic communications address as the parties
hereto shall from time to time designate, or transmitted by certified or
registered mail, charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party hereto may from time
to time designate:
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If to the Trustee, to:
The Chase Manhattan Bank
c/o Chase National Corporate Services, Inc.
3800 Colonnade Parkway, Suite 490
Birmingham, Alabama 35243
Telephone: 205-968-0500
Telecopy: 205-968-9109
If to the Company, to:
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1768
Attention: Mark F. Mulhern, Treasurer
Telephone: (919) 546-6373
Telecopy: (919) 546-7826
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission or other direct written
electronic means, upon date of receipt of the transmission, and if transmitted
by certified or registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF DEBT SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Debt Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
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SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other provision shall control; and
if any provision hereof otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Debt Securities shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflicts of law principles thereof, except to the extent that the law
of any other jurisdiction shall be mandatorily applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Debt Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or of
the Debt Securities other than a provision in Debt Securities of any series, or
any Tranche thereof, or in the indenture supplemental hereto, Board Resolution
or Officer's Certificate which establishes the terms of the Debt Securities of
such series or Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal and premium, if
any, need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at
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the Stated Maturity, and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, to such Business Day.
ARTICLE II
DEBT SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Debt Securities of each series shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Debt
Securities, as evidenced by their execution of the Debt Securities. If the form
or forms of Debt Securities of any series are established in a Board Resolution
or in an Officer's Certificate pursuant to an indenture supplement hereto or to
a Board Resolution, such Board Resolution and Officer's Certificate, if any,
shall be delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Debt Securities.
Unless otherwise specified as contemplated by Sections 301 or
1201(g), the Debt Securities of each series shall be issuable in registered form
without coupons. The definitive Debt Securities shall be produced in such manner
as shall be determined by the officers executing such Debt Securities, as
evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
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This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:____________________ THE CHASE MANHATTAN BANK
as Trustee
By:______________________________
Authorized Representative
SECTION 203 DEBT SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section 301 that the
Debt Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with Section 303 and the Company Order
delivered to the Trustee thereunder, authenticate and deliver such Global
Security or Securities, which (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by such Global Security or
Securities, (ii) may provide that the aggregate amount of Outstanding Debt
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges, (iii) shall be registered in the name of the Depository for
such Global Security or Securities or its nominee, (iv) shall be delivered by
the Trustee to the Depository or pursuant to the Depository's instruction and
(v) shall bear a legend in accordance with the requirements of the Depository.
(b) Notwithstanding any other provision of this Section 203 or of
Section 305, subject to the provisions of paragraph (c) below, unless the terms
of a Global Security expressly permit such Global Security to be exchanged in
whole or in part for individual Debt Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 305,
only to a nominee of the Depository for such Global Security, or to the
Depository, or to a successor Depository for such Global Security selected or
approved by the Company, or to a nominee of such successor Depository.
(c) (1) If at any time the Depository for a Global Security notifies
the Company that it is unwilling or unable to continue as a Depository for such
Global Security or if at any time the Depository for the Debt Securities for
such series shall no longer be eligible or in good standing under the Exchange
Act, or other applicable statute or regulation, the Company shall appoint a
successor Depository with respect to such Global Security. If a successor
Depository for such Global Security is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Debt Securities
of such series in exchange for such Global Security, will authenticate and
deliver individual Debt
15
Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
in exchange for such Global Security. Such Debt Securities will be issued in
registered form to such Persons as are specified by the Depository.
(2) The Company may at any time and in its sole discretion determine
that the Debt Securities of any series issued or issuable in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In addition, if an Event of Default shall have occurred and be
continuing, the holders of more than 50% of the aggregate principal amount of
Debt Securities of any series may determine that the Debt Securities of that
Series will no longer be represented by such Global Security or Securities. In
either such event the Company will execute, and the Trustee, upon receipt of a
Company Request for the authentication and delivery of individual Debt
Securities of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver without service charge to each person
specified by the Depository individual Debt Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing such series
in exchange for such Global Security or Securities.
(3) If specified by the Company pursuant to Section 301 with respect
to Debt Securities issued or issuable in the form of a Global Security, the
Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Debt Securities of such series of
like tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depository. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (A) to each
Person specified by such Depository a new Debt Security or Securities of the
same series of like tenor and terms and any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (B) to such Depository
a new Global Security of like tenor and terms and in an authorized denomination
equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Debt Securities delivered
to Holders thereof.
(4) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Debt Securities in definitive form in authorized
denominations. Upon the exchange of the entire principal amount of a Global
Security for individual Debt Securities, such Global Security shall be cancelled
by the Trustee. Except as provided in the preceding paragraph, Debt Securities
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. Provided that the Company
and the Trustee have so agreed, the Trustee shall deliver such Debt Securities
to the Persons in whose names the Debt Securities are registered.
(5) Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Debt Securities represented thereby shall be made in such manner and
by such Person or Persons as
16
shall be specified therein or in the Company Order to be delivered pursuant to
Section 303 with respect thereto. Subject to the provisions of Section 303, the
Trustee shall deliver and redeliver any such Global Security in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 has been,
or simultaneously is, delivered, any instructions by the Company with respect to
such Global Security shall be in writing but need not be accompanied by or
contained in an Officer's Certificate and need not be accompanied by an Opinion
of Counsel.
ARTICLE III
THE DEBT SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. Subject to
the last paragraph of this Section, prior to the authentication and delivery of
Debt Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Debt Securities of such series (which
shall distinguish the Debt Securities of such series from Debt
Securities of all other series);
(b) any limit upon the aggregate principal amount of the Debt
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of the series pursuant to Section 304,
305, 306, 406 or 1206 and, except for any Debt Securities which,
pursuant to Section 303, are deemed never to have been authenticated
and delivered hereunder);
(c) the Person or Persons (without specific identification) to
whom interest on Debt Securities of such series, or any Tranche
thereof, shall be payable on any Interest Payment Date, if other than
the Persons in whose names such Debt Securities (or one or more
Predecessor Debt Securities) are registered at the close of business
on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the Securities
of such series or any Tranche thereof, is payable or any formulary or
other method or other means by which such date or dates shall be
determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise (without regard
to any provisions for redemption, prepayment, acceleration, purchase
or extension);
(e) the rate or rates at which the Debt Securities of such
series, or any Tranche thereof, shall bear interest, if any (including
the rate or rates at which overdue principal
17
shall bear interest, if different from the rate or rates at which such
Debt Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), the period or periods during which such
rate or rates shall be applicable, or any formulary or other method or
other means by which such rate or rates, and any period or periods,
shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date or
dates from which such interest shall accrue; the Interest Payment
Dates on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on such Debt Securities on any
Interest Payment Date; and the basis of computation of interest, if
other than as provided in Section 310;
(f) the place or places at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on Debt
Securities of such series, or any Tranche thereof, shall be payable,
(2) registration of transfer of Debt Securities of such series, or any
Tranche thereof, may be effected, (3) exchanges of Debt Securities of
such series, or any Tranche thereof, may be effected and (4) notices
and demands to or upon the Company in respect of the Debt Securities
of such series, or any Tranche thereof, and this Indenture may be
served; the Debt Security Registrar for such series; and if such is
the case, that the principal of such Securities shall be payable
without presentment or surrender thereof;
(g) the period or periods within which, or the date or dates
on which, the price or prices at which and the terms and conditions
upon which the Debt Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the option of the Company and
any restrictions on such redemptions, including but not limited to a
restriction on a partial redemption by the Company of the Debt
Securities of any series, or any Tranche thereof, resulting in
delisting of such Debt Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Debt Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other mandatory redemption or
tender provisions or at the option of a Holder thereof and the period
or periods within which or the date or dates on which, the price or
prices at which and the terms and conditions upon which such Debt
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Debt Securities of such series,
or any Tranche thereof, shall be issuable if other than denominations
of $1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if any,
and interest, if any, on the Debt Securities of such series, or any
Tranche thereof, shall be payable (if other than in Dollars);
18
(k) if the principal of or premium, if any, or interest, if
any, on the Debt Securities of such series, or any Tranche thereof,
are to be payable, at the election of the Company or a Holder thereof,
in a coin or currency other than that in which the Debt Securities are
stated to be payable, the period or periods within which and the terms
and conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or interest, if
any, on the Debt Securities of such series, or any Tranche thereof,
are to be payable, or are to be payable at the election of the Company
or a Holder thereof, in securities or other property, the type and
amount of such securities or other property, or the formulary or other
method or other means by which such amount shall be determined, and
the period or periods within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Debt Securities of such
series, or any Tranche thereof, may be determined with reference to an
index or other fact or event ascertainable outside this Indenture, the
manner in which such amounts shall be determined to the extent not
established pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion of
the principal amount of Debt Securities of such series, or any Tranche
thereof, which shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in
Section 801, with respect to the Debt Securities of such series, and
any covenants of the Company for the benefit of the Holders of the
Debt Securities of such series, or any Tranche thereof, in addition to
those set forth in Article Six;
(p) the terms, if any, pursuant to which the Debt Securities
of such series, or any Tranche thereof, may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Debt
Securities of such series, or any Tranche thereof, denominated in a
currency other than Dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Debt Securities after the
satisfaction and discharge thereof as provided in Section 701;
(r) whether the Debt Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for certificated Debt
Securities of such series and of like tenor of any authorized
denomination and the circumstances under which such exchange may
occur, if other than in the manner provided for in Section 203; the
Depository for such Global Security or
19
Securities; and the form of any legend or legends to be borne by any
such Global Security in addition to or in lieu of the legend referred
to in Section 203;
(s) if the Debt Securities of such series, or any Tranche
thereof, are to be issuable in bearer form, any and all matters
incidental thereto which are not specifically addressed in a
supplemental indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of
this paragraph, any limitations on the rights of the Holders of the
Debt Securities of such Series, or any Tranche thereof, to transfer or
exchange such Debt Securities or to obtain the registration of
transfer thereof; and if a service charge will be made for the
registration of transfer or exchange of Debt Securities of such
series, or any Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Debt Securities of
such series, or any Tranche thereof;
(v) any collateral security, assurance or guarantee for such
series of Debt Securities; and
(w) any other terms of the Securities of such series, or any
Tranche thereof, not inconsistent with the provisions of this
Indenture.
With respect to Debt Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board Resolution
which establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Debt Securities of such series and provide
either that the specific terms of Debt Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with procedures specified
in a Company Order as contemplated by clause (b) of the third paragraph of
Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Debt Securities
of each series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Debt Securities, or any Tranche thereof, the Debt
Securities shall be executed on behalf of the Company by an Authorized Officer
and may have the corporate seal of the Company affixed thereto or reproduced
thereon attested by any other Authorized Officer. The signature of any or all of
these officers on the Debt Securities may be manual or facsimile.
20
Debt Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Debt Securities or did not hold such offices at the date of such Debt
Securities.
The Trustee shall authenticate and deliver Debt Securities of
a series, for original issue, at one time or from time to time in accordance
with the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery
of such Debt Securities and, to the extent that the terms of such Debt
Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate, all as contemplated by Sections 201 and 301, either (i)
establishing such terms or (ii) in the case of Debt Securities of a
series subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be established
in either case in accordance with the instrument or instruments
delivered pursuant to clause (a) above;
(c) the Debt Securities of such series, executed on behalf of
the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Debt Securities have
been duly authorized by the Company and have been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Debt Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) assuming authentication and delivery by the
Trustee and subject to any conditions specified in such
Opinion of Counsel, such Debt Securities will have been duly
issued under the Indenture and will be legal, valid and
binding obligations of the Company, enforceable in accordance
with their terms, subject, as to enforcement, to laws relating
to or affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
provided, however, that, with respect to Debt Securities of a series subject to
a Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of such
Debt Securities (provided that such Opinion of Counsel
21
addresses the authentication and delivery of all Debt Securities of such series)
and that in lieu of the opinions described in clauses (ii) and (iii) above
Counsel may opine that:
(x) when the terms of such Debt Securities shall have
been established pursuant to a Company Order or Orders or
pursuant to such procedures (acceptable to the Trustee) as may
be specified from time to time by a Company Order or Orders,
all as contemplated by and in accordance with the instrument
or instruments delivered pursuant to clause (a) above, such
terms will have been duly authorized by the Company and will
have been established in conformity with the provisions of
this Indenture; and
(y) such Debt Securities, when authenticated and
delivered by the Trustee in accordance with this Indenture and
the Company Order or Orders or specified procedures referred
to in paragraph (x) above and issued and delivered by the
Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly issued under
this Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided
by the Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights,
including, without limitation, bankruptcy and insolvency laws
and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or
at law).
With respect to Debt Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the authorization by
the Company of any of such Debt Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel and other documents delivered pursuant to Sections 201 and 301 and
this Section, as applicable, at or prior to the time of the first authentication
of Debt Securities of such series unless and until such opinion or other
documents have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Debt Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such Debt Securities do not
violate any rules, regulations or orders of any Governmental Authority having
jurisdiction over the Company.
If the form or terms of the Debt Securities of any series have
been established by or pursuant to a Board Resolution or an Officer's
Certificate as permitted by Sections 201 or 301, the Trustee shall not be
required to authenticate such Debt Securities if the issuance of such Debt
Securities pursuant to this Indenture will materially or adversely affect the
Trustee's own rights, duties or immunities under the Debt Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Debt Securities, or any Tranche thereof, each Debt
Security shall be dated the date of its authentication.
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Unless otherwise specified as contemplated by Section 301 with
respect to any series of Debt Securities, or any Tranche thereof, no Debt
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Debt Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such certificate
upon any Debt Security shall be conclusive evidence, and the only evidence, that
such Debt Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Debt Security shall have been authenticated and delivered hereunder to the
Company, or any Person acting on its behalf, but shall never have been issued
and sold by the Company, and the Company shall deliver such Debt Security to the
Debt Security Registrar for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Debt Security has never
been issued and sold by the Company, for all purposes of this Indenture such
Debt Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY DEBT SECURITIES.
Pending the preparation of definitive Debt Securities of any
series, or any Tranche thereof, the Company may execute, and upon Company Order
the Trustee shall authenticate and deliver, temporary Debt Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Debt
Securities in lieu of which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Debt Securities may determine, as evidenced by their execution of such Debt
Securities; provided, however, that temporary Debt Securities need not recite
specific redemption, sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Debt Securities of any series, or any Tranche thereof, after the
preparation of definitive Debt Securities of such series or Tranche, the
temporary Debt Securities of such series or Tranche shall be exchangeable,
without charge to the Holder thereof, for definitive Debt Securities of such
series or Tranche, upon surrender of such temporary Debt Securities at the
office or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such Debt Securities. Upon such surrender of temporary Debt
Securities, the Company shall, except as aforesaid, execute and the Trustee
shall authenticate and deliver in exchange therefor definitive Debt Securities
of the same series and Tranche, of authorized denominations and of like tenor
and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Debt Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Debt Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
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SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated
pursuant to Section 602, with respect to the Debt Securities of each series or
any Tranche thereof, a register (all registers kept in accordance with this
Section being collectively referred to as the "Debt Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Debt Securities of such series or Tranche
and the registration of transfer thereof. The Company shall designate one Person
to maintain the Debt Security Register for the Debt Securities of each series on
a consolidated basis, and such Person is referred to herein, with respect to
such series, as the "Debt Security Registrar". Anything herein to the contrary
notwithstanding, the Company may designate one or more of its offices as an
office in which a register with respect to the Debt Securities of one or more
series, or any Tranche or Tranches thereof, shall be maintained, and the Company
may designate itself the Debt Security Registrar with respect to one or more of
such series. The Debt Security Register shall be open for inspection by the
Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301
with respect to the Debt Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Debt Security of such series or
Tranche at the office or agency of the Company maintained pursuant to Section
602 in a Place of Payment for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Debt Securities of the same series
and Tranche, of authorized denominations and of like tenor and aggregate
principal amount.
Except as otherwise specified as contemplated by Section 301
with respect to the Debt Securities of any series, or any Tranche thereof, any
Debt Security of such series or Tranche may be exchanged at the option of the
Holder, for one or more new Debt Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount, upon
surrender of the Debt Securities to be exchanged at any such office or agency.
Whenever any Debt Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Debt Securities
which the Holder making the exchange is entitled to receive.
All Debt Securities delivered upon any registration of
transfer or exchange of Debt Securities shall be valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Debt Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company, the Trustee or
the Debt Security Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Trustee
or the Debt Security Registrar, as the case may be, duly executed by the Holder
thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Debt Securities of any series, or any Tranche thereof, no service
charge shall be made for any
24
registration of transfer or exchange of Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Debt Securities, other than exchanges pursuant to Section 304, 406
or 1206 not involving any transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Debt Securities of any
series, or any Tranche thereof, during a period of 15 days immediately preceding
the day of the mailing of a notice of redemption of the Debt Securities of such
series or Tranche is to be given or (b) any Debt Security so selected for
redemption in whole or in part, except the unredeemed portion of any Debt
Security being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Debt
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If any mutilated Debt Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Debt Security of the same series, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Debt Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Debt Security is held by a Person purporting to be the owner of such Debt
Security, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Debt Security, a new Debt
Security of the same series and Tranche, and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Debt Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Debt
Security, pay such Debt Security.
Upon the issuance of any new Debt Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Debt Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Debt Security shall constitute
an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debt Security shall be at any time enforceable by
anyone other than the Holder of such new Debt Security, and any such
25
new Debt Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt Securities of such
series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Debt Securities of any series, or any Tranche thereof, interest
on any Debt Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Debt Security (or one or more Predecessor Debt Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Debt Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the related Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debt Securities of such
series (or their respective Predecessor Debt Securities) are
registered at the close of business on a date (herein called a
"Special Record Date") for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Debt Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall promptly
cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Debt Securities of such series at the
address of such Holder as it appears in the Debt Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Debt Securities of such series
(or their respective Predecessor Debt Securities) are registered at
the close of business on such Special Record Date.
26
(b) The Company may make payment of any Defaulted Interest on
the Debt Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Debt Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Debt Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Debt Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Debt Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Debt Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Debt Security is registered as
the absolute owner of such Debt Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Debt Security and for all other purposes whatsoever,
whether or not such Debt Security is overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION 309. CANCELLATION BY DEBT SECURITY REGISTRAR.
All Debt Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Debt Security Registrar, be delivered to the Debt Security Registrar
and, if not theretofore canceled, shall be promptly canceled by the Debt
Security Registrar. The Company may at any time deliver to the Debt Security
Registrar for cancellation any Debt Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever
or which the Company shall not have issued and sold, and all Debt Securities so
delivered shall be promptly canceled by the Debt Security Registrar. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All certificates representing canceled Debt Securities held
by the Debt Security Registrar shall be disposed of in accordance with the
customary practices of the Debt Security Registrar at the time in effect, and
the Debt Security Registrar shall not be required to destroy any such
certificates. The Debt Security Registrar, if other than the trustee, shall
promptly deliver a certificate of disposition with respect to such disposed
certificates to the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that canceled Debt Securities be
returned to it. The Debt Security Registrar shall promptly deliver evidence of
any cancellation of a Debt Security in accordance with this Section to the
Trustee and the Company. If the Trustee is the entity acting as Debt Security
Registrar, it shall promptly deliver to the Company a certificate of disposition
with respect to any certificates disposed of and/or evidence of any cancellation
of a Debt Security, in each case in accordance with this Section, if so
requested by a Company Order.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Debt Securities of any series, or any Tranche thereof, interest on the Debt
Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and on the basis of the actual number of days
elapsed within any month in relation to the deemed 30 days of such month.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Debt Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars or in a
composite currency (the "Required Currency"), except as otherwise specified with
respect to such Debt Securities as contemplated by Section 301, the obligation
of the Company to make any payment of the principal thereof, or the premium or
interest thereon, shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful misconduct.
ARTICLE IV
REDEMPTION OF DEBT SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Debt Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Debt Securities of such series or Tranche) in accordance with this
Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Debt Securities
shall be evidenced by a Board Resolution and/or an Officer's Certificate. The
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
such Debt Securities to be redeemed. In the case of any redemption of Debt
Securities (a) prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in this Indenture or
(b) pursuant to an election of the Company which is
28
subject to a condition specified in the terms of such Debt Securities, the
Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction or condition.
SECTION 403. SELECTION OF DEBT SECURITIES TO BE REDEEMED.
If less than all the Debt Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Trustee from the Outstanding Debt Securities
of such series or Tranche not previously called for redemption, by such method
as shall be provided for any particular series, or, in the absence of any such
provision, by such method of random selection as the Trustee shall deem fair and
appropriate and which may, in any case, provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Debt Securities of
such series or Tranche or any integral multiple thereof) of the principal amount
of Debt Securities of such series or Tranche of a denomination larger than the
minimum authorized denomination for Debt Securities of such series or Tranche;
provided, however, that if, as indicated in an Officer's Certificate, the
Company shall have offered to purchase all or any principal amount of the Debt
Securities then Outstanding of any series, or any Tranche thereof, and less than
all of such Debt Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Debt Securities which have not been so tendered.
If the Debt Securities are then held in the form of a Global
Security, the Trustee shall select Debt Securities to be redeemed in accordance
with the customary procedures for the Depository.
The Trustee shall promptly notify the Company and the Debt
Security Registrar in writing of the Debt Securities selected for redemption
and, in the case of any Debt Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt Securities
shall relate, in the case of any Debt Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Debt Securities which
has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Debt Securities to be redeemed not less than
30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
29
(c) if less than all the Debt Securities of any series or
Tranche are to be redeemed, the identification of the particular Debt
Securities to be redeemed and the portion of the principal amount of
any Debt Security to be redeemed in part,
(d) that on the Redemption Date, the Redemption Price,
together with accrued interest, if any, to the Redemption Date, will
become due and payable upon each such Debt Security to be redeemed
and, if applicable and provided that the Redemption Price is received
by the Paying Agent or Agents on or prior to the Redemption Date, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Debt Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, unless it shall have been specified as contemplated by Section
301 with respect to such Debt Securities that such surrender shall not
be required,
(f) that the redemption is for a sinking or other fund, if
such is the case, and
(g) such other matters as the Company shall deem desirable or
appropriate (including CUSIP numbers with respect to such Debt
Securities, if the Company shall so elect, in which event such notice
of redemption may contain a disclaimer as to the correctness of such
numbers either as printed on the Debt Securities or on such notice of
redemption).
Unless otherwise specified with respect to any Debt Securities
in accordance with Section 301, with respect to any notice of redemption of Debt
Securities at the election of the Company, unless, upon the giving of such
notice, such Debt Securities shall be deemed to have been paid in accordance
with Section 701, such notice may state that such redemption shall be
conditional upon the receipt by the Paying Agent or Agents for such Debt
Securities, on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and interest, if any, on
such Debt Securities and that if such money shall not have been so received such
notice shall be of no force or effect and the Company shall not be required to
redeem such Debt Securities. In the event that such notice of redemption
contains such a condition and such money is not so received, the redemption
shall not be made and within a reasonable time thereafter notice shall be given,
in the manner in which the notice of redemption was given, that such money was
not so received and such redemption was not required to be made, and the Paying
Agent or Agents for the Debt Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such Debt Securities which had
been surrendered for payment upon such redemption.
Notice of redemption of Debt Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, at the Company's
request, by the Debt Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Debt Securities shall be given by the
Debt Security Registrar in the name and at the expense of the Company.
30
SECTION 405. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the Debt
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Debt Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Debt Security for
redemption in accordance with such notice, such Debt Security or portion thereof
shall be paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so specified as contemplated
by Section 301 with respect to such Debt Security; and provided, further, that
except as otherwise specified as contemplated by Section 301 with respect to
such Debt Security, any installment of interest on any Debt Security the Stated
Maturity of which installment is on or prior to the Redemption Date shall be
payable to the Holder of such Debt Security, or one or more Predecessor Debt
Securities, registered as such at the close of business on the related Regular
Record Date according to the terms of such Debt Security and subject to the
provisions of Section 307.
SECTION 406. DEBT SECURITIES REDEEMED IN PART.
Upon the surrender of any Debt Security which is to be
redeemed only in part at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Debt
Security, without service charge, a new Debt Security or Debt Securities of the
same series and Tranche, of any authorized denomination requested by such Holder
and of like tenor and in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE V
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Debt Securities of any series, or any
Tranche thereof, except as otherwise specified as contemplated by Section 301
for Debt Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series, or any Tranche thereof, is herein
referred to as a "mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Debt Securities of any series,
or any Tranche thereof, is herein referred to as an
31
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, or any Tranche thereof, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 502. Each sinking
fund payment shall be applied to the redemption of Debt Securities of the series
or Tranche in respect of which it was made as provided for by the terms of such
Debt Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Debt
Securities (other than any previously called for redemption) of a series or
Tranche in respect of which a mandatory sinking fund payment is to be made and
(b) may apply as a credit Debt Securities of such series or Tranche which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of such mandatory sinking fund payment;
provided, however, that no Debt Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Debt Securities shall have been
previously so applied. Debt Securities so applied shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date
for the Debt Securities of any series, or any Tranche thereof, the Company shall
deliver to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting Debt
Securities of such series or Tranche pursuant to Section 502 and
stating the basis for such credit and that such Debt Securities have
not previously been so credited, and the Company shall also deliver to
the Trustee any Debt Securities to be so delivered.
If the Company shall not have delivered such Officer's
Certificate and, to the extent applicable, all such Debt Securities, on or prior
to the 45th day prior to such sinking fund payment date, the sinking fund
payment for such series or Tranche in respect of such sinking
32
fund payment date shall be made entirely in cash in the amount of the mandatory
sinking fund payment. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Debt Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 403 and the
Debt Security Registrar shall cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 404. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections 405
and 406.
ARTICLE VI
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any,
and interest, if any, on the Debt Securities of each series in accordance with
the terms of such Debt Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Debt Securities of each series, or any Tranche thereof, an office or agency
where payment of such Debt Securities shall be made, where the registration of
transfer or exchange of such Debt Securities may be effected and where notices
and demands to or upon the Company in respect of such Debt Securities and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of each such office or
agency and prompt notice to the Holders of any such change in the manner
specified in Section 106. If at any time the Company shall fail to maintain any
such required office or agency in respect of Debt Securities of any series, or
any Tranche thereof, or shall fail to furnish the Trustee with the address
thereof, payment of such Debt Securities shall be made, registration of transfer
or exchange thereof may be effected and notices and demands in respect thereof
may be served at one or more Designated Trustee Offices specified from time to
time by the Trustee, and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Debt Securities of one or more
series, or any Tranche thereof, for any or all of the foregoing purposes and may
from time to time rescind such designations; provided, however, that, unless
otherwise specified as contemplated by Section 301 with respect to the Debt
Securities of such series or Tranche no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such Debt Securities in
accordance with the requirements set forth above. The Company shall give prompt
written notice to the Trustee, and prompt notice to the Holders in the manner
specified in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
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Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the Company,
in which event the Company shall perform all functions to be performed at such
office or agency.
SECTION 603. MONEY FOR DEBT SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to the Debt Securities of any series, or any Tranche thereof, it
shall, on or before each due date of the principal of and premium, if any, and
interest, if any, on any of such Debt Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company (or any other obligor
on such Debt Securities) to make any payment of principal of or premium, if any,
or interest, if any, on such Debt Securities.
Whenever the Company shall have one or more Paying Agents for
the Debt Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest, if
any, on such Debt Securities, deposit with such Paying Agents sums sufficient
(without duplication) to pay the principal and premium or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of any failure by it so
to act.
The Company shall cause each Paying Agent for the Debt
Securities of any series, or any Tranche thereof, other than the Company or the
Trustee, to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal
of and premium, if any, or interest, if any, on such Debt Securities
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any failure by the Company (or
any other obligor upon such Debt Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such Debt
Securities; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent and furnish to the
Trustee such information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent and, if
so stated in a Company Order delivered to the Trustee, in
34
accordance with the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Debt Security and remaining
unclaimed for two years after such principal and premium, if any, or interest
has become due and payable shall be paid to the Company on Company Request, or,
if then held by the Company, shall be discharged from such trust; and, upon such
payment or discharge, the Holder of such Debt Security shall, as an unsecured
general creditor and not as a Holder of an Outstanding Debt Security, look only
to the Company for payment of the amount so due and payable and remaining
unpaid, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such payment to the Company, may at the
expense of the Company cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing, any
unclaimed balance of such money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties used or
useful in the conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort to cause) to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as, in the judgment of the Company, may be necessary so that the
business carried on in connection therewith may be properly conducted; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation and maintenance
of any of its properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than June 1 in each year, commencing June 1, 2000,
the Company shall deliver to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
stating whether, to such officer's knowledge, the Company is in compliance with
all conditions and covenants under this Indenture, such compliance to be
determined without regard to any period of grace or requirement of notice under
this Indenture,
35
and making any other statements as may be required by the provisions of Section
314(a)(4) of the Trust Indenture Act.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in (a) Section 602 or any additional
covenant or restriction specified with respect to the Debt Securities of any
series, or any Tranche thereof, as contemplated by Section 301 if before the
time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Debt Securities of all series and Tranches
with respect to which compliance with Section 602 or such additional covenant or
restriction is to be omitted, considered as one class, shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section 604, 605 or
Article Eleven if before the time for such compliance the Holders of at least a
majority in principal amount of Debt Securities Outstanding under this Indenture
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition; but, in the
case of (a) or (b), no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE VII
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF DEBT SECURITIES.
Any Debt Security or Debt Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for all purposes of
this Indenture, and the entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Debt Securities or portions thereof, Eligible Obligations, which
shall not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the principal
of and the interest on which when due, without any regard to
reinvestment thereof, will provide moneys which, together with the
money, if any, deposited with or held by the Trustee or such Paying
Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
36
to pay when due the principal of and premium, if any, and interest, if
any, due and to become due on such Debt Securities or portions thereof
on or prior to Maturity, provided, however, that in the case of the
provision for payment or redemption of less than all the Debt
Securities of any series or Tranche, such Debt Securities or portions
thereof shall have been selected by the Trustee as provided herein
and, in the case of a redemption, the notice requisite to the validity
of such redemption shall have been given or irrevocable authority
shall have been given by the Company to the Trustee to give such
notice, under arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Debt Securities, a Company Order stating that
the money and Eligible Obligations deposited in accordance
with this Section shall be held in trust, as provided in
Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations so
deposited constitute Eligible Obligations and do not contain
provisions permitting the redemption or other prepayment at
the option of the issuer thereof, and an opinion of an
independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the
requirements set forth in clause (b) above have been
satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Debt Securities, an Officer's Certificate
stating the Company's intention that, upon delivery of such
Officer's Certificate, its indebtedness in respect of such
Debt Securities or portions thereof will have been satisfied
and discharged as contemplated in this Section.
If the Company shall make any deposit of money and/or Eligible
Obligations with respect to any Debt Securities, or any portion of the principal
amount thereof, as contemplated by this section, the Company shall not deliver
an Officer's Certificate described in clause (z) above unless the Company shall
also deliver to the Trustee, together with such Officer's Certificate, an
Opinion of Counsel to the effect that, as a result of a change in law occurring
after the date of this Indenture, the Holders of such Debt Securities, or
portions thereof, will not recognize income, gain or loss for United States
federal income tax purposes as a result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be subject to United States
federal income tax on the same amounts, at the same times and in the same manner
as if such satisfaction and discharge had not been effected.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon receipt of a Company Request,
acknowledge in writing that the Debt Security or Debt Securities or portions
thereof with respect to which such deposit was made are deemed to have been paid
for all purposes of this Indenture and that the entire indebtedness of the
Company in respect thereof has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions set forth in the first
paragraph of this Section shall have been satisfied in respect of any Debt
Securities or portions thereof except that the Officer's Certificate specified
in
37
clause (z) shall not have been delivered, such Debt Securities or portions
thereof shall nevertheless be deemed to have been paid for all purposes of this
Indenture, and the Holders of such Debt Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants made in respect of
such Debt Securities or portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Debt Securities or portions
thereof shall not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such Debt Securities or
portions thereof shall continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and, upon Company Request, the
Trustee shall acknowledge in writing that such Debt Securities or portions
thereof are deemed to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the Debt
Securities of any series, or any Tranche thereof, is to be provided for in the
manner and with the effect provided in this Section, the Trustee shall select
such Debt Securities, or portions of principal amount thereof, in the manner
specified by Section 403 for selection for redemption of less than all the Debt
Securities of a series or Tranche.
In the event that Debt Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is the case, in
respect of which the Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature and are not to be
redeemed within the sixty (60) day period commencing with the date of the
deposit of moneys or Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a notice of
redemption with respect to such Debt Securities, to the Holders of such Debt
Securities to the effect that such deposit has been made and the effect thereof.
Notwithstanding that any Debt Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the obligations of
the Company and the Trustee in respect of such Debt Securities under Sections
304, 305, 306, 404, 503 (as to notice of redemption), 602, 603, 907, 914 and 915
and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against any tax, fee or other charge imposed on or
assessed against such Eligible Obligations or the principal or interest received
in respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Debt Security would be deemed to have been paid for purposes of
this Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied or discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, shall be required to return the money or
Eligible Obligations, or combination thereof, deposited with it as aforesaid to
the Company or its
38
representative under any applicable Federal or State bankruptcy, insolvency or
other similar law, such Debt Security shall thereupon be deemed retroactively
not to have been paid and any satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be deemed not to have been
effected, and such Debt Security shall be deemed to remain Outstanding and (b)
any satisfaction and discharge of the Company's indebtedness in respect of any
Debt Security shall be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Debt Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
701, any Debt Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the Trustee under
Sections 304, 305, 306, 404, 503 (as to notice of redemption), 602, 603, 907,
914 and 915 and this Article shall survive.
Upon satisfaction and discharge of this Indenture as provided
in this Section, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Debt Securities other than money and Eligible Obligations held by
the Trustee pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments on any such
Eligible Obligations, shall be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal of, and premium, if
any, and interest, if any, on, the Debt Securities or portions of principal
amount thereof in respect of which such deposit was made, all subject, however,
to the provisions of Section 603; provided, however, that, so long as there
shall not have occurred and be continuing an Event of Default, or an event
which, with the giving of notice or the passage of time, would become an Event
of Default, any cash received from such principal or interest payments on such
Eligible Obligations, if not then needed for such purpose, shall, to the extent
practicable, be invested in Eligible Obligations of the type described in clause
(b) in the first paragraph of
39
Section 701 maturing at such times and in such amounts as shall be sufficient to
pay when due the principal of and premium, if any, and interest, if any, due and
to become due on such Debt Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such reinvestment shall be paid over
to the Company as received, free and clear of any trust, lien or pledge under
this Indenture except the lien provided by Section 907; and provided, further,
that, so long as there shall not have occurred and be continuing an Event of
Default, or an event which, with the giving of notice or the passage of time,
would become an Event of Default, any moneys held in accordance with this
Section on the Maturity of all such Debt Securities in excess of the amount
required to pay the principal of and premium, if any, and interest, if any, then
due on such Debt Securities shall be paid over to the Company free and clear of
any trust, lien or pledge under this Indenture except the lien provided by
Section 907; and provided, further, that if an Event of Default, or an event
which, with the giving of notice or the passage of time, would become an Event
of Default, shall have occurred and be continuing, moneys to be paid over to the
Company pursuant to this Section shall be held until such Event of Default, or
event which, with the giving of notice or the passage of time, would become an
Event of Default, shall have been waived or cured.
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Debt
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Debt Security of
such series within thirty (30) days after the same becomes due and
payable; or
(b) failure to pay the principal of or premium, if any, on any
Debt Security of such series when due and payable; or
(c) failure to perform or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Debt Securities other than such series) for a period of 60
days after there has been given, by registered or certified mail, to
the Company by the Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the Outstanding Debt
Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder, unless the Trustee, or the Trustee
and the Holders of a principal amount of Debt Securities of such
series not less than the principal amount of Debt Securities the
Holders of which gave such notice, as the case may be, shall agree in
writing to an extension of such period prior to its expiration;
provided, however, that the Trustee, or the Trustee and the Holders
40
of such principal amount of Debt Securities of such series, as the
case may be, shall be deemed to have agreed to an extension of such
period for a maximum of one hundred twenty (120) days if corrective
action is initiated by the Company within such period and is being
diligently pursued; or
(d) the entry by a court having jurisdiction in the premises
of (1) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (2) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Company or for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such decree or order
for relief or any such other decree or order shall have remained
unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or state
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they
become due, or the authorization of such action by the Board of
Directors; or
(f) any other Event of Default specified with respect to Debt
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of
principal of, or premium, if any, or interest on, any series of Debt Securities
or due to the default in the performance or breach of any other covenant or
warranty of the Company applicable to the Debt Securities of such series but not
applicable to all Outstanding Debt Securities shall have occurred and be
continuing, either the Trustee or the Holders of not less than 33% in principal
amount of the Debt Securities of such series may then declare the principal
amount (or, if any of the Debt Securities of such series are Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms thereof as contemplated by Section 301) of all Debt Securities of such
series and premium, if payment of any thereof be in default, and interest
accrued thereon to be
41
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders). If an Event of Default due to default in the
performance of any other of the covenants or warranties herein applicable to all
Outstanding Debt Securities or an Event of Default specified in Section 801(d)
or (e) shall have occurred and be continuing, either the Trustee or the Holders
of not less than 33% in principal amount of all Debt Securities then Outstanding
(considered as one class), and not the Holders of the Debt Securities of any one
of such series, may declare the principal amount (or, if any of the Debt
Securities are Discount Debt Securities, such portion of the principal amount of
such Debt Securities as may be specified in the terms thereof as contemplated by
Section 301) of all Debt Securities and premium, if payment of any thereof be in
default, and interest accrued thereon to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by the Holders).
As a consequence of each such declaration (herein referred to as a declaration
of acceleration) with respect to Debt Securities of any series, the principal
amount (or portion thereof in the case of Discount Debt Securities) of such
Securities, premium, if any, and interest accrued thereon shall become due and
payable immediately.
At any time after such a declaration of acceleration with
respect to Debt Securities of any series shall have been made and before a
judgment or decree for payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the Event or Events of Default
giving rise to such declaration of acceleration shall, without further act, be
deemed to have been waived, and such declaration and its consequences shall,
without further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee
a sum sufficient to pay
(1) all overdue interest on all Debt Securities of such
series;
(2) the principal of and premium, if any, on any Debt
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Debt Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Debt Securities;
(4) all amounts due to the Trustee under Section 907; and
(b) any other Event or Events of Default with respect to Debt
Securities of such series, other than the non-payment of the principal
of Debt Securities of such series which shall have become due solely
by such declaration of acceleration, shall have been cured or waived
as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
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SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 801 shall have occurred and be continuing, the Company shall, upon
demand of the Trustee, pay to it, for the benefit of the Holders of the Debt
Securities of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Debt Securities for
principal and premium, if any, and interest, if any, and, to the extent
permitted by law, interest on premium, if any, and on any overdue principal and
interest, at the rate or rates prescribed therefor in such Debt Securities, and,
in addition thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Debt
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Debt Securities, wherever situated.
If an Event of Default with respect to Debt Securities of any
series shall have occurred and be continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of Debt
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Debt Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and unpaid in
respect of the Debt Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for amounts due to the Trustee
under Section 907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT SECURITIES.
All rights of action and claims under this Indenture or the
Debt Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders in respect of which such
judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or premium, if any, or interest, if any, upon presentation of the Debt
Securities in respect of which or for the benefit of which such money shall have
been collected and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 907;
SECOND: To the payment of the amounts then due and unpaid upon
the Debt Securities for principal of and premium, if any, and
interest, if any, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Debt
Securities for principal, premium, if any, and interest, if any,
respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, or to whomsoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
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(a) such Holder shall have previously given written notice to
the Trustee of a continuing Event of Default with respect to the Debt
Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of all series in
respect of which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of all series in respect of which an Event of Default
shall have occurred and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any, and
(subject to Section 307) interest, if any, on such Debt Security on the Stated
Maturity or Maturities expressed in such Debt Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
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.SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 812. CONTROL BY HOLDERS OF DEBT SECURITIES.
If an Event of Default shall have occurred and be continuing
in respect of a series of Debt Securities, the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Debt Securities of such series; provided,
however, that if an Event of Default shall have occurred and be continuing with
respect to more than one series of Debt Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of all such
series, considered as one class, shall have the right to make such direction,
and not the Holders of the Debt Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and could not involve the Trustee in
personal liability in circumstances where indemnity would not in the
Trustee's reasonable discretion be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Before proceeding to exercise any right or power hereunder at
the direction of such Holders, the Trustee shall be entitled to receive from
such Holders security or indemnity satisfactory to the Trustee in its reasonable
judgment, against the costs, expenses and liabilities which might be incurred by
it in compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of such
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series waive any past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Debt Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the Outstanding
Debt Securities of all series in respect of which such suit may be brought,
considered as one class, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or premium, if any, or interest,
if any, on any Debt Security on or after the Stated Maturity or Maturities
expressed in such Debt Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
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ARTICLE IX
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the duties
and responsibilities specified with respect to an indenture trustee in
the Trust Indenture Act and no implied covenants or obligations shall
be read into this Indenture against the Trustee. For purposes of
Sections 315(a) and 315(c) of the Trust Indenture Act, the term
"default" is hereby defined as an Event of Default which has occurred
and is continuing.
(b) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which
may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an
Event of Default of which a Responsible Officer of the Trustee has
actual knowledge has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except
that
(1) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may
have occurred
(A) the duties and obligations of the Trustee 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
(B) 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 certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but, in the case of any such certificates or opinions that 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.
(d) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proven that the Trustee was negligent in
ascertaining the pertinent facts.
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(e) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith, in accordance with
the direction of the Holders of Debt Securities pursuant to Section
812, 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.
(f) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity, satisfactory to the Trustee in its reasonable judgment,
against such risk or liability is not reasonably assured to it.
(g) Notwithstanding anything contained in this Indenture to
the contrary, the duties and responsibilities of the Trustee under
this Indenture shall be subject to the protections, exculpations and
limitations on liability afforded to the Trustee under the provisions
of the Trust Indenture Act, including those provisions of such Act
deemed by such Act to be included herein.
(h) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
ECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default
hereunder with respect to the Debt Securities of any series to the Holders of
Debt Securities of such series of which it has knowledge (within the meaning of
Section 903(h) hereof) in the manner and to the extent required to do so by the
Trust Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character specified in
Section 801(c), no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time, or both,
would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
49
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
or as otherwise expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate,
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee security satisfactory to the
Trustee in its reasonable judgment or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal business
hours, the books, records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through any number of agents (including, without limitation,
authenticating agents and paying agents), servicers, custodians,
nominees or attorneys (any or all of which agents, servicers,
custodians, nominees or attorneys, in the Trustee's discretion, may be
Affiliates of the Trustee) and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, servicer,
contractor, nominee, or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Debt Securities of any
series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee shall have actual knowledge of the
default or Event of Default or (2) written notice of such default or
Event of Default (which shall state that such notice is a "Notice of
Default" or a "Notice of an Event of Default" hereunder, as the case
may be) shall have been given to the Trustee by the Company, any other
obligor on such Debt Securities or by any Holder of such Debt
Securities;
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(i) the Trustee shall not be liable for any action taken or
omitted by it in good faith, without negligence, and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(j) the Trustee shall not be bound to ascertain or inquire as
to the performance or observance of any covenants, conditions or
agreements on the part of the Company, except as otherwise set forth
herein, but the Trustee may require of the Company, full information
and advice as to the performance of the covenants, conditions and
agreements contained herein and shall be entitled in connection
herewith to examine the books, records and premises of the Company;
(k) in no event shall the Trustee be liable for the selection
of investments or for investment losses incurred thereon. The Trustee
shall have no liability in respect of losses as a result of the
liquidation of any investment prior to its stated maturity or the
failure of the party directing such investment to provide timely
written investment direction. The Trustee shall have no obligation to
invest or reinvest any amounts held hereunder in the absence of such
written investment direction; and
(l) in the event that the Trustee is also acting as
Authenticating Agent, Paying Agent, Debt Security Registrar, exchange
agent or transfer agent hereunder, the rights, indemnities (including
without limitation Section 907) and protections afforded to the
Trustee pursuant to this Article Nine shall also be afforded to such
Authenticating Agent, Paying Agent, Debt Security Registrar, exchange
agent or transfer agent.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT SECURITIES.
The recitals contained herein and in the Debt Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Debt Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Debt Securities or the proceeds thereof.
SECTION 905. MAY HOLD DEBT SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Debt Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Debt Securities and,
subject to Sections 908 and 913, may otherwise deal with the Company with the
same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Debt Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds, except to the extent required by law. The Trustee shall be
under no liability for interest on investment of any money received by it
hereunder except as expressly provided herein or otherwise agreed with, and for
the sole benefit of, the Company.
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SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustee
in accordance with any provision of this Indenture, including the
costs of collection (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except to the
extent that any such expense, disbursement or advance may be
attributable to its negligence, willful misconduct or bad faith; and
(c) indemnify, defend and hold the Trustee and its directors,
officers, agents and employees (collectively, the "Indemnitees")
harmless from and against any and all claims, liabilities, losses,
damages, fines, penalties, taxes (other than taxes on the income of
the Trustee) and expenses, including out-of-pocket and incidental
expenses and legal fees (including the allocated costs and expenses of
in-house counsel and legal staff) ("Losses") that may be imposed on,
incurred by, or asserted against, the Indemnitees or any of them for
following any instructions or other directions upon which the Trustee
is authorized to rely pursuant to the terms of this Indenture; and
(d) in addition to and not in limitation of clause (c) above
of this Paragraph, indemnify, defend and hold harmless the Indemnitees
and each of them from and against any and all Losses that may be
imposed on, incurred by, or asserted against, the Indemnitees or any
of them in connection with or arising out of the exercise or
performance by the Trustee of any of its powers or duties under this
Indenture, provided that the Indemnitees have not acted with
negligence or bad faith or engaged in willful misconduct.
(e) In connection with claims for which indemnification is
provided under paragraphs (c) or (d) above, the Company shall assume
the defense of the Indemnitees with counsel acceptable to the Trustee,
provided that the Trustee may employ separate counsel and participate
in the defense but the fees and expenses of such separate counsel
shall be at its own expense.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the Debt
Securities upon all property and funds held or collected by the Trustee as such
other than property and funds held in trust under Section 703 (except as
otherwise provided in Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided; however, that the negligence, willful
misconduct or bad faith of any Trustee hereunder shall not affect the rights of
any other Trustee hereunder.
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When a Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(d) or Section
801(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section 907 shall survive termination
of this Indenture.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a Trustee under this Indenture with
respect to Debt Securities of more than one series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws
of the United States, any State or Territory thereof or the District
of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $100,000,000
and subject to supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $100,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign government or
a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of
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appointment by the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Debt Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Debt Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908
after written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
909 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities or (y) subject to Section 814, any
Holder who has been a bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Debt Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated in clause (y) in
subsection (d) of this Section), with respect to the Debt Securities
of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt
Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Debt Securities of
any particular series) and shall comply with the applicable
requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of
any series shall be appointed by Act of the Holders of a
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majority in principal amount of the Outstanding Debt Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of
Section 911, become the successor Trustee with respect to the Debt
Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect
to the Debt Securities of any series shall have been so appointed by
the Company or the Holders and accepted appointment in the manner
required by Section 911, any Holder who has been a bona fide Holder of
a Debt Security of such series for at least six months may, on behalf
of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Debt Securities of such series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred
and be continuing, and except with respect to a Trustee appointed by
Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities pursuant to subsection (e) of this
Section, if the Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee, effective as of a
date specified therein, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such successor Trustee in
accordance with Section 911, the Trustee shall be deemed to have
resigned as contemplated in subsection (b) of this Section, the
successor Trustee shall be deemed to have been appointed by the
Company pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated in
Section 911, all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with this
subsection (f).
(g) The Company or, should the Company fail so to act
promptly, the successor Trustee, at the expense of the Company, shall
give notice of each resignation and each removal of the Trustee with
respect to the Debt Securities of any series and each appointment of a
successor Trustee with respect to the Debt Securities of any series by
mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Debt Securities of such series as their
names and addresses appear in the Debt Security Register. Each notice
shall include the name of the successor Trustee with respect to the
Debt Securities of such series and the address of its corporate trust
office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of all series, every such
successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of all sums owed to it, execute
and deliver an
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instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not
all) series, the Company, the retiring Trustee and each successor
Trustee with respect to the Debt Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Debt Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee, upon payment
of all sums owed to it, shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to such
successor Trustee all such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
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hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Debt Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Debt Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act), the
Trustee shall be subject to any and all applicable provisions of the Trust
Indenture Act regarding the collection of claims against the Company or such
other obligor. For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee shall
have power to appoint, and, upon the written request of the Trustee or of the
Holders of at least thirty-three per centum (33%) in principal amount of the
Debt Securities then Outstanding, the Company shall for such purpose join with
the Trustee in the execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Trustee
either to act as co-trustee, jointly with the Trustee, or to act as separate
trustee, in either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons, in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company does not join in such
appointment within 15 days after the receipt by it of a request so to do, or if
an Event of Default shall have occurred and be continuing, the Trustee alone
shall have power to make such appointment.
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Should any written instrument or instruments from the Company
be required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
conditions:
(a) the Debt Securities shall be authenticated and delivered,
and all rights, powers, duties and obligations hereunder in respect of
the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Trustee hereunder,
shall be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by the Trustee and
such co-trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate trustee, except
to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may accept the
resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, if an Event of Default shall have occurred
and be continuing, the Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Company. Upon the written request of
the Trustee, the Company shall join with the Trustee in the execution
and delivery of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee
or separate trustee so resigned or removed may be appointed in the
manner provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Debt Securities of one or more series, or any Tranche thereof,
which shall be authorized to act on behalf of the Trustee to authenticate Debt
Securities of such series or Tranche issued upon original issuance, exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Debt Securities so authenticated shall be entitled to the benefits of
this
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Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities by the Trustee
or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States, any State or territory
thereof or the District of Columbia or the Commonwealth of Puerto Rico,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 45
days written notice thereof to the Trustee and to the Company. The Trustee may
at any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Debt Securities of one
or more series, or any
59
Tranche thereof, shall be made pursuant to this Section, the Debt Securities
of such series or Tranche may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:___________________________
By___________________________
As Trustee
By___________________________
As Authenticating Agent
By___________________________
Authorized Signatory
If all of the Debt Securities of a series may not be
originally issued at one time, and if the Trustee does not have an office
capable of authenticating Debt Securities upon original issuance located in a
Place of Payment where the Company wishes to have Debt Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel), shall appoint, in accordance with this
Section and in accordance with such procedures as shall be acceptable to the
Trustee, an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Debt Securities.
ARTICLE X
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, between March 15 and April 1 and between
September 15 and October 1 in each year, commencing with the year 2000, and at
such other times as the Trustee may request in writing, the Company shall
furnish or cause to be furnished to the Trustee information as to the names and
addresses of the Holders, and the Trustee shall preserve such information and
similar information received by it in any other capacity and afford to the
Holders access to information so preserved by it, all to such extent, if any,
and in such manner as shall be required by the Trust Indenture Act; provided,
however, that no such list need be furnished so long as the Trustee shall be the
Debt Security Registrar. Every holder of Debt Securities by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Debt
60
Securities in accordance with Section 312 of the Trust Indenture Act, or any
successor section of such Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trustee Indenture Act, or any successor section of such Act.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Annually, not later than sixty (60) days after May 15 in each
year, commencing May 15, 2000, the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Debt Securities are
listed, a report, dated as of the next preceding May 15th, with respect to any
events and other matters described in Section 313(a) of the Trust Indenture Act,
in such manner and to the extent required by the Trust Indenture Act. The
Trustee shall transmit to the Holders, the Commission and each securities
exchange upon which any Debt Securities are listed, and the Company shall file
with the Trustee (within thirty (30) days after filing with the Commission in
the case of reports which pursuant to the Trust Indenture Act must be filed with
the Commission and furnished to the Trustee) and transmit to the Holders, such
other information, reports and other documents, if any, at such times and in
such manner, as shall be required by the Trust Indenture Act. Without limitation
to the generality of the foregoing, the Company, pursuant to Section 314(a) of
the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act, or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) above of this Section 1002 as may be
required by rules and regulations prescribed from time to time by the
Commission.
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The Company shall notify the Trustee of the listing of any
Debt Securities on any securities exchange. Delivery of such reports,
information and documents by the Company to the Trustee is for informational
purposes only, and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer's Certificates).
ARTICLE XI
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Person organized and existing
under the laws of the United States, any State thereof or the District
of Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of, and
premium, if any, and interest, if any, on all Outstanding Debt
Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an
obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transactions
have been complied with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation formed by such
consolidation or into which the Company is merged or the Person to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise
62
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities Outstanding hereunder.
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Debt Securities, all as provided in
Article Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding Debt Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any right or power
herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Debt Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or
to add any new provision to this Indenture; provided, however, that if
such change, elimination or addition shall adversely affect the
interests of the Holders of Debt Securities of any series or Tranche
Outstanding on the date of such indenture supplemental hereto in any
material respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Debt Security of such
series or Tranche remains Outstanding; or
(e) to provide collateral security for the Debt Securities; or
(f) to establish the form or terms of Debt Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof, and for
any and all other matters incidental thereto; or
63
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a non-certificated system of
registration for all, or any series or Tranche of, the Debt
Securities; or to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving of notice to, and
the solicitation of the vote or consent of, the holders thereof, and
for any and all other matters incidental thereto; or
(j) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series of
Debt Securities, or any Tranche thereof, shall be payable, (2) all or
any series of Debt Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or any series of
Debt Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company in respect
of all or any series of Debt Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein; provided that no such changes or additions shall
adversely affect the interests of the Holders of Debt Securities of
any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and if any such amendment
shall require one or more changes to any provisions hereof or the inclusion
herein of any additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so as to conform to such
amendment to the Trust Indenture Act, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture supplemental hereto
to effect or evidence such changes or additional provisions.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture pursuant to this Section 1201 to effect
any such amendment described above, to make any further agreements and
stipulations which may be contained therein and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Debt Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture; provided,
however, that if there shall be Debt Securities of more than one series
Outstanding hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Debt Securities of one or more, but less
than all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of all series so
directly affected, considered as one class, shall be required; and provided,
further, that if the Debt Securities of any series shall have been issued in
more than one Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Debt Securities of one or more, but less
than all, of such Tranches, then the consent only of the Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of all Tranches
so directly affected, considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on any Debt Security, or
reduce the principal amount thereof or the rate of interest thereon
(or the amount of any installment of interest thereon) or change the
method of calculating such rate or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a
Discount Debt Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 802, or change the coin or currency (or other property), in
which any Debt Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity of any Debt Security
(or, in the case of redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder of such Debt
Security, or
(b) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series or any Tranche thereof, the
consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with any provision of this Indenture or of any
default hereunder and its consequences, or reduce the requirements of
Section 1304 for quorum or voting, without, in any such case, the
consent of the Holders of each Outstanding Debt Security of such
series or Tranche, or
(c) modify any of the provisions of this Section, Section 607
or Section 813 with respect to the Debt Securities of any series, or
any Tranche thereof (except to increase the percentages in principal
amount referred to in this Section or such other Sections or to
provide that other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt
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
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changes in this Section in accordance with the requirements of
Sections 911(b), 914 and 1201(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Debt Securities
of such series or Tranches with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Debt Securities of any other series or Tranche.
Upon the request of the Company, accompanied by a copy of the
Board Resolution authorizing the execution of any such supplemental indenture,
compliance by the Company with Section 1203 hereof, and the filing with the
Trustee of evidence of the consent of the Holders of the Debt Securities
required hereunder with respect to the proposed supplemental indenture, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless the 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 any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof. A
waiver by a Holder of such Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 901) shall be fully protected in relying
upon an Officer's Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture.
ECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Debt Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby. Any supplemental indenture permitted
by this Article may restate this Indenture in its entirety, and, upon the
execution and delivery thereof, any such restatement shall supersede this
Indenture as theretofore in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 1206. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Debt Securities
of any series, or any Tranche thereof, so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debt Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Debt Securities shall
have been established in a Board Resolution or an Officer's Certificate pursuant
to a Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or Officer's
Certificate shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required to be
satisfied if such additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Board Resolution or
Officer's Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE XIII
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Debt Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Debt
Securities of such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Debt Securities of one or more, or all, series, or any Tranche or
Tranches thereof, for any purpose specified in Section 1301, to be
held at such time and at such place in the Borough of Manhattan, The
City of New York, as the Trustee shall determine, or, with the
approval of the Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such
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meeting, shall be given, in the manner provided in Section 106, not
less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to call a meeting
of the Holders of Debt Securities of one or more, or all, series, or
any Tranche or Tranches thereof, by the Company or by the Holders of
33% in aggregate principal amount of all of such series and Tranches,
considered as one class, for any purpose specified in Section 1301, by
written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Debt Securities of
such series and Tranches in the amount above specified, as the case
may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as shall be
determined or approved by the Company, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Debt Securities of one or more,
or all, series, or any Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding Debt Securities of
such series or Tranches are present in person or by proxy and if
representatives of the Company and the Trustee are present, or if
notice is waived in writing before or after the meeting by the Holders
of all Outstanding Debt Securities of such series, or by such of them
as are not present at the meeting in person or by proxy, and by the
Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Debt
Securities of one or more, or all, series, or any Tranche or Tranches thereof, a
Person shall be (a) a Holder of one or more Outstanding Debt Securities of such
series or Tranches, or (b) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Debt Securities of such
series or Tranches by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Debt Securities of any series or
Tranche shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Debt Securities of the series and Tranches with
respect to which a meeting shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a meeting of Holders of
Debt Securities of such series and Tranches; provided, however, that if any
action is to be taken at such meeting which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Debt Securities of such series
and Tranches, considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Debt Securities
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of such series and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Debt
Securities of such series and Tranches, be dissolved. In any other case the
meeting may be adjourned for such period as may be determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for such period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by Section 1305(e),
notice of the reconvening of any meeting adjourned for more than 30 days shall
be given as provided in Section 1302(a) not less than ten days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Debt Securities of such series and
Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Debt Securities of such series
and Tranches, considered as one class, may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Debt Securities of such series and Tranches,
considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Debt Securities duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of the series and Tranches with
respect to which such meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Debt Securities may
be in person or by proxy; and, to the extent permitted by law, any
such proxy shall remain in effect and be binding upon any future
Holder of the Debt Securities with respect to which it was given
unless and until specifically revoked by the Holder or future Holder
of such Debt Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Debt Securities in regard to
proof of the holding of such Debt Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall deem
69
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt Securities shall be proved in the
manner specified in Section 104 and the appointment of any proxy shall
be proved in the manner specified in Section 104. Such regulations may
provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1302(b), in
which case the Company or the Holders of Debt Securities of the series
and Tranches calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Debt Securities of all series and Tranches represented
at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to
one vote for each $1 principal amount of Debt Securities held or
represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Debt Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Debt Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which
a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Debt Securities of all series and Tranches represented at
the meeting, considered as one class; and the meeting may be held as
so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the signatures
of the Holders or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Debt Securities, of the series and
Tranches with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee
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to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Debt Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof, or of
the indebtedness represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator, stockholder, officer
or director, as such, past, present or future of the Company or of any
predecessor or successor corporation (either directly or through the Company or
a predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Debt Securities are solely corporate obligations, and that
no personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debt Securities or to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Debt Securities.
--------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CAROLINA POWER & LIGHT COMPANY
By: /s/ Mark F. Mulhern
---------------------------------
Mark F. Mulhern
Vice President and Treasurer
[SEAL]
ATTEST:
/s/ William D. Johnson
- ---------------------------------
William D. Johnson
Senior Vice President and
Corporate Secretary
(Trustee's Signature Page Follows)
THE CHASE MANHATTAN BANK, Trustee
By: /s/ Patti Maner
-------------------------------
Patti Maner
Authorized Representative
[SEAL]
ATTEST:
/s/ Roy Wessinger
- ---------------------------------
Roy Wessinger
Authorized Representative