Exhibit 4(d)
APPALACHIAN POWER COMPANY
AND
BANKERS TRUST COMPANY,
AS TRUSTEE
--------------------
INDENTURE
Dated as of ______________
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
310(a) . . . . . . . . . . . . . . . . . . . . 7.09
310(b) . . . . . . . . . . . . . . . . . . . . 7.08
. . . . . . . . . . . . . . . . . . . . 7.10
310(c) . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . 7.13
311(b) . . . . . . . . . . . . . . . . . . . . 7.13
311(c) . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . 5.01
. . . . . . . . . . . . . . . . . . . . 5.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . 5.02(c)
. . . . . . . . . . . . . . . . . . . . 5.02(d)
312(c) . . . . . . . . . . . . . . . . . . . . 5.02(e)
313(a) . . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b) . . . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . . 5.04(a)
. . . . . . . . . . . . . . . . . . . . 5.04(b)
313(d) . . . . . . . . . . . . . . . . . . . . 5.04(c)
314(a) . . . . . . . . . . . . . . . . . . . . 5.03
314(b) . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . 13.06(a)
314(d) . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . 13.06(b)
314(f) . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . 7.01(a)
. . . . . . . . . . . . . . . . . . . . 7.02
315(b) . . . . . . . . . . . . . . . . . . . . 6.07
315(c) . . . . . . . . . . . . . . . . . . . . 7.01(a)
315(d) . . . . . . . . . . . . . . . . . . . . 7.01(b)
315(e) . . . . . . . . . . . . . . . . . . . . 6.08
316(a) . . . . . . . . . . . . . . . . . . . . 6.06
. . . . . . . . . . . . . . . . . . . . 8.04
316(b) . . . . . . . . . . . . . . . . . . . . 6.04
316(c) . . . . . . . . . . . . . . . . . . . . 8.01
317(a) . . . . . . . . . . . . . . . . . . . . 6.02
317(b) . . . . . . . . . . . . . . . . . . . . 4.03
318(a) . . . . . . . . . . . . . . . . . . . . 13.08
TABLE OF CONTENTS
This Table of Contents does not constitute part of the
Indenture and should not have any bearing upon the
interpretation of any of its terms or provisions
RECITALS:
Purpose of Indenture . . . . . . . . . . . . . . . . . . . 1
Compliance with legal requirements . . . . . . . . . . . . 1
Purpose of and consideration for Indenture . . . . . . . . 1
ARTICLE ONE - DEFINITIONS
Section 1.01
Certain terms defined, other terms defined
in the Trust Indenture Act of 1939,
as amended, or by reference therein in
the Securities Act of 1933, as amended,
to have the meanings assigned therein
Affiliate . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . 3
Certificate . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . 4
Global Note . . . . . . . . . . . . . . . . . . . . . 4
Governmental Obligations . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . 5
Note . . . . . . . . . . . . . . . . . . . . . . . . 5
Noteholder . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . 5
Original Issue Date . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Note . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . 7
ARTICLE TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
Section 2.01
Designation, terms, amount, authentication
and delivery of Notes . . . . . . . . . . . . . . . . 7
Section 2.02
Form of Note and Trustee's certificate . . . . . . . 8
Section 2.03
Date and denominations of Notes,
and provisions for payment of principal,
premium and interest . . . . . . . . . . . . . . . . 8
Section 2.04
Execution of Notes . . . . . . . . . . . . . . . . 10
Section 2.05
Exchange of Notes . . . . . . . . . . . . . . . . . 11
(a) Registration and transfer
of Notes . . . . . . . . . . . . . . . . . . . 11
(b) Note Register; Notes to be accompanied
by proper instruments of transfer . . . . . . 11
(c) Charges upon exchange, transfer or
registration of Notes . . . . . . . . . . . . 12
(d) Restrictions on transfer or
exchange at time of redemption . . . . . . . . 12
Section 2.06
Temporary Notes . . . . . . . . . . . . . . . . . . 12
Section 2.07
Mutilated, destroyed, lost or
stolen Notes . . . . . . . . . . . . . . . . . . . 12
Section 2.08
Cancellation of surrendered Notes . . . . . . . . . 13
Section 2.09
Provisions of Indenture and Notes
for sole benefit of parties and
Noteholders . . . . . . . . . . . . . . . . . . . . 14
Section 2.10
Appointment of Authenticating Agent . . . . . . . . 14
Section 2.11
Global Note . . . . . . . . . . . . . . . . . . . . 14
(a) Authentication and Delivery;
Legend . . . . . . . . . . . . . . . . . . . . 14
(b) Transfer of Global Note . . . . . . . . . . . 15
(c) Issuance of Notes in
Definitive Form . . . . . . . . . . . . . . . 15
ARTICLE THREE - REDEMPTION OF NOTES AND
SINKING FUND PROVISIONS
Section 3.01
Redemption of Notes . . . . . . . . . . . . . . . . 16
Section 3.02
(a) Notice of redemption . . . . . . . . . . . . . 16
(b) Selection of Notes in case
less than all Notes to be
redeemed . . . . . . . . . . . . . . . . . . . 16
Section 3.03
(a) When Notes called for
redemption become due and payable . . . . . . 17
(b) Receipt of new Note upon
partial payment . . . . . . . . . . . . . . . 17
Section 3.04
Sinking Fund for Notes . . . . . . . . . . . . . . 18
Section 3.05
Satisfaction of Sinking Fund
Payments with Notes . . . . . . . . . . . . . . . . 18
Section 3.06
Redemption of Notes for
Sinking Fund . . . . . . . . . . . . . . . . . . . 18
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Payment of principal (and premium
if any) and interest on Notes . . . . . . . . . . . 19
Section 4.02
Maintenance of office or agency for
payment of Notes, designation of
office or agency for payment,
registration, transfer and exchange
of Notes . . . . . . . . . . . . . . . . . . . . . 19
Section 4.03
(a) Duties of paying agent . . . . . . . . . . . . 19
(b) Company as paying agent . . . . . . . . . . . 20
(c) Holding sums in trust . . . . . . . . . . . . 20
Section 4.04
Appointment to fill vacancy in
office of Trustee . . . . . . . . . . . . . . . . . 20
Section 4.05
Restriction on consolidation,
merger or sale . . . . . . . . . . . . . . . . . . 20
ARTICLE FIVE - NOTEHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to furnish Trustee information
as to names and addresses of
Noteholders . . . . . . . . . . . . . . . . . . . . 21
Section 5.02
(a) Trustee to preserve information
as to names and addresses of
Noteholders received by it
in capacity of paying agent . . . . . . . . . 21
(b) Trustee may destroy list of
Noteholders on certain
conditions . . . . . . . . . . . . . . . . . . 21
(c) Trustee to make information as to
names and addresses of Noteholders
available to "applicants" to mail
communications to Noteholders in
certain circumstances . . . . . . . . . . . . 21
(d) Procedure if Trustee elects not to
make information available to
applicants . . . . . . . . . . . . . . . . . . 22
(e) Company and Trustee not accountable
for disclosure of information . . . . . . . . 22
Section 5.03
(a) Annual and other reports to be filed
by Company with Trustee . . . . . . . . . . . 22
(b) Additional information and reports
to be filed with Trustee and
Securities and Exchange Commission . . . . . . 23
(c) Summaries of information and reports
to be transmitted by Company to
Noteholders . . . . . . . . . . . . . . . . . 23
(d) Annual Certificate to be furnished
to Trustee . . . . . . . . . . . . . . . . . . 23
Section 5.04
(a) Trustee to transmit annual report
to Noteholders . . . . . . . . . . . . . . . . 23
(b) Trustee to transmit certain further
reports to Noteholders . . . . . . . . . . . . 24
(c) Copies of reports to be filed with
stock exchanges and Securities and
Exchange Commission . . . . . . . . . . . . . 25
ARTICLE SIX - REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS ON EVENT OF DEFAULT
Section 6.01
(a) Events of default defined . . . . . . . . . . 25
(b) Acceleration of maturity
upon Event of Default . . . . . . . . . . . . 26
(c) Waiver of default and rescission
of declaration of maturity . . . . . . . . . . 26
(d) Restoration of former position
and rights upon curing default . . . . . . . . 27
Section 6.02
(a) Covenant of Company to pay to
Trustee whole amount due on
Notes on default in payment
of interest or principal (and
premium, if any) . . . . . . . . . . . . . . . 27
(b) Trustee may recover judgment for
whole amount due on Notes on
failure of Company to pay . . . . . . . . . . 28
(c) Billing of proof of claim by Trustee
in bankruptcy, reorganization or
receivership proceeding . . . . . . . . . . . 28
(d) Rights of action and of asserting
claims may be enforced by Trustee
without possession of Notes . . . . . . . . . 28
Section 6.03
Application of monies collected by Trustee . . . . 29
Section 6.04
Limitation on suits by holders of Notes . . . . . . 29
Section 6.05
(a) Remedies Cumulative . . . . . . . . . . . . . 30
(b) Delay or omission in exercise
of rights not waiver of default . . . . . . . 30
Section 6.06
Rights of holders of majority in
principal amount of Notes to
direct trustee and to waive defaults . . . . . . . 30
Section 6.07
Trustees to give notice of defaults
known to it, but may withhold in
certain circumstances . . . . . . . . . . . . . . . 31
Section 6.08
Requirements of an undertaking to pay
costs in certain suits under Indenture
or against Trustee . . . . . . . . . . . . . . . . 32
ARTICLE SEVEN - CONCERNING THE TRUSTEE
Section 7.01
(a) Upon Event of Default occurring and
continuing, Trustee shall exercise powers
vested in it, and use same degree of
care and skill in their exercise, as
prudent individual will use . . . . . . . . . 32
(b) Trustee not relieved from liability
for negligence or willful misconduct
except as provided in this section . . . . . . 33
(1) Prior to Event of Default and
after the curing of all Events of
Default which may have occurred
(i) Trustee not liable except for
performance of duties specifically
set forth
(ii) In absence of bad faith, Trustee
may conclusively rely on
certificates or opinions furnished
it hereunder,subject to duty to
examine the same if specifically
required to be furnished to it
(2) Trustee not liable for error of judgment made
in good faith by Responsible Officer unless
Trustee negligent
(3) Trustee not liable for action or non-action
in accordance with direction of holders
of majority in principal amount of
Notes
(4) Trustee need not expend own funds without
adequate indemnity
Section 7.02
Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or presented . . . 34
(b) Sufficient evidence by certain
instruments provided for . . . . . . . . . . . 34
(c) Trustee may consult with counsel and act
on advice or Opinion of Counsel . . . . . . . 34
(d) Trustee may require indemnity from
Noteholders . . . . . . . . . . . . . . . . . 34
(e) Trustee not liable for actions in good
faith believed to be authorized . . . . . . . 34
(f) Trustee not bound to investigate facts or
matters stated in certificates, etc. unless
requested in writing by Noteholders . . . . . 34
(g) Trustee may perform duties directly or
through agents or attorneys . . . . . . . . . 35
(h) Permissive rights of Trustee . . . . . . . . . 35
Section 7.03
(a) Trustee not liable for recitals in
Indenture or in Notes . . . . . . . . . . . . 35
(b) No representations by Trustee as to
validity or Indenture or of Notes . . . . . . 35
(c) Trustee not accountable for use of
Notes or proceeds . . . . . . . . . . . . . . 35
Section 7.04
Trustee, paying agent or Note
Registrar may own Notes . . . . . . . . . . . . . . 35
Section 7.05
Monies received by Trustee to be held
in Trust without interest . . . . . . . . . . . . . 36
Section 7.06
(a) Trustee entitled to compensation,
reimbursement and indemnity . . . . . . . . . 36
(b) Obligations to Trustee to be
secured by lien prior to
Notes . . . . . . . . . . . . . . . . . . . . 36
(c) Survival of Obligations . . . . . . . . . . . 36
Section 7.07
Right of Trustee to rely on certificate
of officers of Company where no other
evidence specifically prescribed . . . . . . . . . 36
Section 7.08
Trustee acquiring conflicting interest
to eliminate conflict or resign . . . . . . . . . . 37
Section 7.09
Requirements for eligibility of
trustee . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.10
(a) Resignation of Trustee and
appointment of successor . . . . . . . . . . . 37
(b) Removal of Trustee by Company
or by court on Noteholders'
application . . . . . . . . . . . . . . . . . 38
(c) Removal of Trustee by holders
of majority in principal amount
of Notes . . . . . . . . . . . . . . . . . . . 38
(d) Time when resignation or removal
of Trustee effective . . . . . . . . . . . . . 38
(e) One Trustee for each series . . . . . . . . . 39
Section 7.11
(a) Acceptance by successor Trustee . . . . . . . 39
(b) Trustee with respect to less than
all series . . . . . . . . . . . . . . . . . . 39
(c) Company to confirm Trustee's rights . . . . . 40
(d) Successor Trustee to be qualified . . . . . . 40
(e) Notice of succession . . . . . . . . . . . . . 40
Section 7.12
Successor to Trustee by merger, consolidation
of succession to business . . . . . . . . . . . . . 40
Section 7.13
Limitations on rights of Trustee as a
creditor to obtain payment of certain
claims . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE EIGHT - CONCERNING THE NOTEHOLDERS
Section 8.01
Evidence of action by Noteholders . . . . . . . . . 41
Section 8.02
Proof of execution of instruments and of
holding of Notes . . . . . . . . . . . . . . . . . 41
Section 8.03
Who may be deemed owners of Notes . . . . . . . . . 42
Section 8.04
Notes owned by Company or controlled
or controlling companies disregarded for
certain purposes . . . . . . . . . . . . . . . . . 42
Section 8.05
Instruments executed by Noteholders
bind future holders . . . . . . . . . . . . . . . . 42
ARTICLE NINE - SUPPLEMENTAL INDENTURES
Section 9.01
Purposes for which supplemental indenture
may be entered into without consent of
Noteholders . . . . . . . . . . . . . . . . . . . . 43
Section 9.02
Modification of Indenture with consent
of Noteholders . . . . . . . . . . . . . . . . . . 44
Section 9.03
Effect of supplemental indentures . . . . . . . . . 45
Section 9.04
Notes may bear notation of changes
by supplemental indentures . . . . . . . . . . . . 45
Section 9.05
Opinion of Counsel . . . . . . . . . . . . . . . . 45
ARTICLE TEN - CONSOLIDATION, MERGER AND SALE
Section 10.01
Consolidations or mergers of Company
and sales or conveyances of property
of Company permitted . . . . . . . . . . . . . . . 46
Section 10.02
(a) Rights and duties of successor company . . . . 46
(b) Appropriate changes may be made in
phraseology and form of Notes . . . . . . . . 47
(c) Company may consolidate or merge into
itself or acquire properties of other
corporations . . . . . . . . . . . . . . . . . 47
Section 10.03
Opinion of Counsel . . . . . . . . . . . . . . . . 47
ARTICLE ELEVEN - SATISFACTION AND DISCHARGE OF INDENTURE:
UNCLAIMED MONIES
Section 11.01
Defeasance and conditions to defeasance . . . . . . 47
Section 11.02
Application by Trustee of funds deposited
for payment of Notes . . . . . . . . . . . . . . . 48
Section 11.03
Repayment of monies held by paying agent . . . . . 49
Section 11.04
Repayment of monies held by Trustee . . . . . . . . 49
Section 11.05
Delivery of Officer's Certificate
and Opinion of Counsel . . . . . . . . . . . . . . 49
ARTICLE TWELVE - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01
Incorporators, Stockholders, officers and
directors of Company exempt from individual
liability . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE THIRTEEN - MISCELLANEOUS PROVISIONS
Section 13.01
Successors and assigns of Company
bound by Indenture . . . . . . . . . . . . . . . . 50
Section 13.02
Acts of board, committee or officer
of successor company valid . . . . . . . . . . . . 50
Section 13.03
Surrender of powers by Company . . . . . . . . . . 50
Section 13.04
Required notices or demands may by
served by mail . . . . . . . . . . . . . . . . . . 50
Section 13.05
Indenture and Notes to be construed
in accordance with laws of the State
of New York . . . . . . . . . . . . . . . . . . . . 51
Section 13.06
(a) Officers' Certificate and Opinion of
Counsel to be furnished upon applications
or demands by company . . . . . . . . . . . . 51
(b) Statements to be included in each
certificate or opinion with respect
to compliance with condition or covenant . . . 51
Section 13.07
Payments due on non-business days . . . . . . . . . 51
Section 13.08
Provisions required by Trust Indenture
Act of 1939 to control . . . . . . . . . . . . . . 51
Section 13.09
Indenture may be executed in counterparts . . . . . 51
Section 13.10
Separability of Indenture provisions . . . . . . . 52
Section 13.11
Assignment by Company to subsidiary . . . . . . . . 52
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . 52
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . 52
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . 52
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . 53
THIS INDENTURE, dated as of the ___ day of _________, 199_,
between APPALACHIAN POWER COMPANY, a corporation duly organized
and existing under the laws of the Commonwealth of Virginia
(hereinafter sometimes referred to as the "Company"), and BANKERS
TRUST COMPANY, a corporation of the State of New York, as trustee
(hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to
provide for the issuance of unsecured promissory notes
(hereinafter referred to as the "Notes"), in an unlimited
aggregate principal amount to be issued from time to time in one
or more series as in this Indenture provided, as registered Notes
without coupons, to be authenticated by the certificate of the
Trustee, and which will rank pari passu with all other unsecured
and unsubordinated debt of the Company;
WHEREAS, to provide the terms and conditions upon which the
Notes are to be authenticated, issued and delivered, the Company
has duly authorized the execution of this Indenture;
WHEREAS, the Notes and the certificate of authentication to
be borne by the Notes (the "Certificate of Authentication") are
to be substantially in such forms as may be approved by a Company
Order (as defined below), or set forth in any indenture
supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the Notes
issued pursuant hereto, when executed by the Company and
authenticated and delivered by the Trustee as in this Indenture
provided, the valid, binding and legal obligations of the
Company, and to constitute these presents a valid indenture and
agreement according to its terms, have been done and performed or
will be done and performed prior to the issuance of such Notes,
and the execution of this Indenture has been and the issuance
hereunder of the Notes has been or will be prior to issuance in
all respects duly authorized, and the Company, in the exercise of
the legal right and power in it vested, executes this Indenture
and proposes to make, execute, issue and deliver the Notes;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are and are to be authenticated, issued and delivered,
and in consideration of the premises, of the purchase and
acceptance of the Notes by the holders thereof and of the sum of
one dollar ($1.00) to it duly paid by the Trustee at the
execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee,
for the equal and proportionate benefit (subject to the
provisions of this Indenture) of the respective holders from time
to time of the Notes, without any discrimination, preference or
priority of any one Note over any other by reason of priority in
the time of issue, sale or negotiation thereof, or otherwise,
except as provided herein, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. The terms defined in this Section (except as
in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture,
any resolution of the Board of Directors of the Company and of
any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this
Indenture which are defined in the Trust Indenture Act of 1939,
as amended, or which are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date
of the execution of this instrument.
Affiliate:
The term "Affiliate" of the Company shall mean any company at
least a majority of whose outstanding voting stock shall at the
time be owned by the Company, or by one or more direct or
indirect subsidiaries of or by the Company and one or more direct
or indirect subsidiaries of the Company. For the purposes only
of this definition of the term "Affiliate", the term "voting
stock", as applied to the stock of any company, shall mean stock
of any class or classes having ordinary voting power for the
election of a majority of the directors of such company, other
than stock having such power only by reason of the occurrence of
a contingency.
Authenticating Agent:
The term "Authenticating Agent" shall mean an authenticating
agent with respect to all or any of the series of Notes, as the
case may be, appointed with respect to all or any series of the
Notes, as the case may be, by the Trustee pursuant to Section
2.10.
Board of Directors or Board:
The term "Board of Directors" or "Board" shall mean the Board of
Directors of the Company, or any duly authorized committee of
such Board.
Board Resolution:
The term "Board Resolution" shall mean 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.
Business Day:
The term "business day", with respect to any series of Notes,
shall mean any day other than a day on which banking institutions
in the Borough of Manhattan, the City and State of New York, are
authorized or obligated by law or executive order to close.
Certificate:
The term "Certificate" shall mean a certificate signed by the
Chairman of the Board, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company. The
Certificate need not comply with the provisions of Section 13.06.
Commission:
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
Company:
The term "Company" shall mean Appalachian Power Company, a
corporation duly organized and existing under the laws of
Virginia, and, subject to the provisions of Article Ten, shall
also include its successors and assigns.
Company Order:
The term "Company Order" shall mean a written order signed in the
name of the Company by the Chairman, the President, any Vice
President, the Treasurer or any Assistant Treasurer, and the
Secretary or an Assistant Secretary of the Company, pursuant to
Board delegation establishing a series of Notes.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean 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 the execution of this Indenture is located at Four Albany
Street, New York, New York.
Default:
The term "Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an Event
of Default.
Depository:
The term "Depository" shall mean, with respect to Notes of any
series, for which the Company shall determine that such Notes
will be issued as a Global Note, The Depository Trust Company,
New York, New York, another clearing agency, or any successor
registered as a clearing agency under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.01 or 2.11.
Event of Default:
The term "Event of Default" with respect to Notes of a particular
series shall mean any event specified in Section 6.01, continued
for the period of time, if any, therein designated.
Global Note:
The term "Global Note" shall mean, with respect to any series of
Notes, a Note executed by the Company and delivered by the
Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with the Indenture, which shall be
registered in the name of the Depository or its nominee.
Governmental Obligations:
The term "Governmental Obligations" shall mean securities that
are (i) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received
by the custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the Governmental
Obligation evidenced by such depository receipt.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as
so amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any
installment of interest on a Note of a particular series shall
mean the date specified in such Note or in a Board Resolution,
Company Order or an indenture supplemental hereto with respect to
such series as the fixed date on which an installment of interest
with respect to Notes of that series is due and payable.
Note or Notes:
The term "Note" or "Notes" shall mean any Note or Notes, as the
case may be, authenticated and delivered under this Indenture.
Noteholder:
The term "Noteholder", "holder of Notes" or "registered holder"
shall mean the person or persons in whose name or names a
particular Note shall be registered on the books of the Company
kept for that purpose in accordance with the terms of this
Indenture.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed
by the Chairman of the Board, the President, a Vice President,
the Treasurer or an Assistant Treasurer and by the Secretary or
Assistant Secretary of the Company. Each such certificate shall
include the statements provided for in Section 13.06, if and to
the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee of or counsel for
the Company. Each such opinion shall include the statements
provided for in Section 13.06, if and to the extent required by
the provisions thereof.
Original Issue Date:
The term "Original Issue Date" shall mean for a Note, or portions
thereof, the date upon which it, or such portion, was issued by
the Company pursuant to this Indenture and authenticated by the
Trustee (other than in connection with a transfer, exchange or
substitution).
Outstanding:
The term "outstanding", when used with reference to Notes of any
series, shall, subject to the provisions of Section 8.04, mean,
as of any particular time, all Notes of that series theretofore
authenticated and delivered by the Trustee under this Indenture,
except (a) Notes theretofore canceled by the Trustee or any
paying agent, or delivered to the Trustee or any paying agent for
cancellation or which have previously been canceled; (b) Notes or
portions thereof for the payment or redemption of which monies or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Notes or
portions of such Notes are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in
Article Three provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and (c) Notes in
lieu of or in substitution for which other Notes shall have been
authenticated and delivered pursuant to the terms of Section
2.07.
Predecessor Note:
The term "Predecessor Note" of any particular Note shall mean
every previous Note evidencing all or a portion of the same debt
as that evidenced by such particular Note; and, for the purposes
of this definition, any Note authenticated and delivered under
Section 2.07 in lieu of a lost, destroyed or stolen Note shall be
deemed to evidence the same debt as the lost, destroyed or stolen
Note.
Responsible Officer:
The term "Responsible Officer" when used with respect to the
Trustee shall mean the chairman of the board of directors, the
president, any vice president, the secretary, the treasurer, any
trust officer, any corporate trust officer or any other officer
or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
Trustee:
The term "Trustee" shall mean Bankers Trust Company, and, subject
to the provisions of Article Seven, shall also include its
successors and assigns, and, if at any time there is more than
one person acting in such capacity hereunder, "Trustee" shall
mean each such person. The term "Trustee" as used with respect
to a particular series of the Notes shall mean the trustee with
respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of
Sections 9.01, 9.02, and 10.01, shall mean the Trust Indenture
Act of 1939, as amended and in effect at the date of execution of
this Indenture.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. The aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is
unlimited.
The Notes may be issued from time to time in one or more
series. Each series shall be authorized by a Company Order
pursuant to Board delegation or one or more indentures
supplemental hereto, that establishes the terms of the series,
which may include the following: (i) any limitations on the
aggregate principal amount of the Notes to be issued as part of
such series; (ii) the Original Issue Date or Dates for such
series; (iii) the stated maturity of such series; (iv) the
Interest Payment Dates for such series of Notes; (v) the interest
rate or rates, or method of calculation of such rate or rates,
for such series; (vi) the terms, if any, regarding the optional
or mandatory redemption of such series, including redemption date
or dates of such series, if any, and the price or prices
applicable to such redemption (including any premium); (vii)
whether or not the Notes of such series shall be issued in whole
or in part in the form of a Global Note and, if so, the
Depositary for such Global Note; (viii) the designation of such
series; (ix) the form of the Notes of such series; (x) the
maximum annual interest rate, if any, of the Notes permitted for
such series; (xi) any other information necessary to complete the
Notes of such series; (xii) the establishment of any office or
agency pursuant to Section 4.02 hereof; (xiii) if other than
denominations of $1,000 or any integral multiple thereof, the
denominations in which the Notes of the series shall be issuable;
and (xiv) any other terms of such series not inconsistent with
this Indenture.
All Notes of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided
in or pursuant to any such Company Order or in any indentures
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Company Order, a copy of an appropriate
record of Board action shall be certified by the Secretary or an
Assistant Secretary of the Company.
SECTION 2.02. The Notes of any series and the Trustee's
certificate of authentication to be borne by such Notes shall be
substantially of the tenor and purport as set forth in one or
more indentures supplemental hereto or as provided in a Company
Order, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Notes of that
series may be listed or of the Depository, or to conform to
usage.
SECTION 2.03. The Notes shall be issuable as registered
Notes and in the denominations of $1,000 or any integral multiple
thereof, subject to Section 2.01(xiii). The Notes of a
particular series shall bear interest payable on the dates and at
the rate or rates specified with respect to that series. The
principal of and the interest on the Notes of any series, as well
as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United
States of America which at the time is legal tender for public
and private debt, at the office or agency of the Company
maintained for that purpose. Each Note shall be dated the date
of its authentication.
The interest installment on any Note which is payable, and
is punctually paid or duly provided for, on any Interest Payment
Date for Notes of that series shall be paid to the person in
whose name said Note (or one or more Predecessor Notes) is
registered at the close of business on the regular record date
for such interest installment, except that interest payable on
redemption or maturity shall be payable as set forth in the
Company Order or indenture supplemental hereto establishing the
terms of such series of Notes.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date for Notes of the same series (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by
the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted
Interest on Notes to the persons in whose names such Notes
(or their respective Predecessor Notes) are registered at
the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to
be paid on each such Note 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 not be more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date
therefor to be mailed, first class postage prepaid, to each
Noteholder at his or her address as it appears in the Note
Register (as hereinafter defined), 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 mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose
names such Notes (or their respective Predecessor Notes) are
registered on such special record date and shall be no
longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Notes in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Notes 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.
Unless otherwise set forth in a Company Order or one or more
indentures supplemental hereto establishing the terms of any
series of Notes pursuant to Section 2.01 hereof, the term
"regular record date" as used in this Section with respect to a
series of Notes with respect to any Interest Payment Date for
such series shall mean either the fifteenth day of the month
immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month,
or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series
pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such
date is a business day.
Subject to the foregoing provisions of this Section, each
Note of a series delivered under this Indenture upon transfer of
or in exchange for or in lieu of any other Note of such series
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
SECTION 2.04. The Notes shall, subject to the provisions of
Section 2.06, be printed on steel engraved borders or fully or
partially engraved, or legibly typed, as the proper officer of
the Company may determine, and shall be signed on behalf of the
Company by its Chairman of the Board, its President, its
Treasurer or one of its Vice Presidents. The signature of the
Chairman of the Board, the President, Treasurer or a Vice
President upon the Notes, may be in the form of a facsimile
signature of a present or any future Chairman of the Board,
President, Treasurer or Vice President and may be imprinted or
otherwise reproduced on the Notes and for that purpose the
Company may use the facsimile signature of any person who shall
have been a Chairman of the Board, President, Treasurer or Vice
President, notwithstanding the fact that at the time the Notes
shall be authenticated and delivered or disposed of such person
shall have ceased to be the Chairman of the Board, President,
Treasurer or a Vice President of the Company, as the case may be.
Only such Notes as shall bear thereon a Certificate of
Authentication substantially in the form established for such
Notes, executed manually by an authorized signatory of the
Trustee, or by any Authenticating Agent with respect to such
Notes, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate executed
by the Trustee, or by any Authenticating Agent appointed by the
Trustee with respect to such Notes, upon any Note executed by the
Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this
Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes of any
series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such Notes, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes.
In authenticating such Notes and accepting the additional
responsibilities under this Indenture in relation to such Notes,
the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon, an Opinion of
Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Notes
if the issue of such Notes pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Notes
and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
SECTION 2.05. (a) Notes of any series may be exchanged
upon presentation thereof at the office or agency of the Company
designated for such purpose, for other Notes of such series of
authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in
this Section. In respect of any Notes so surrendered for
exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange
therefor the Note or Notes of the same series which the
Noteholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of
Manhattan, the City and State of New York, or such other location
designated by the Company a register or registers (herein
referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
register the Notes and the transfers of Notes as in this Article
provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of
registering Notes and transfer of Notes as herein provided shall
be appointed as authorized by Board Resolution or Company Order
(the "Note Registrar").
Upon surrender for transfer of any Note at the office or
agency of the Company designated for such purpose in the Borough
of Manhattan, the City and State of New York, or other location
as aforesaid, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name
of the transferee or transferees a new Note or Notes of the same
series as the Note presented for a like aggregate principal
amount.
All Notes presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Note Registrar)
by a written instrument or instruments of transfer, in form
satisfactory to the Company or the Note Registrar, duly executed
by the registered holder or by his duly authorized attorney in
writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Notes, or issue of new Notes in case
of partial redemption of any series, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.
(d) The Company shall not be required (i) to issue,
exchange or register the transfer of any Notes during a period
beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of less than all the
outstanding Notes of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register the
transfer of or exchange any Notes of any series or portions
thereof called for redemption. The provisions of this Section
2.05 are, with respect to any Global Note, subject to Section
2.11 hereof.
SECTION 2.06. Pending the preparation of definitive Notes
of any series, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Notes (printed, lithographed
or typewritten) of any authorized denomination, and substantially
in the form of the definitive Notes in lieu of which they are
issued, but with such omissions, insertions and variations as may
be appropriate for temporary Notes, all as may be determined by
the Company. Every temporary Note of any series shall be
executed by the Company and be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and
with like effect, as the definitive Notes of such series.
Without unnecessary delay the Company will execute and will
furnish definitive Notes of such series and thereupon any or all
temporary Notes of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose, and the Trustee shall
authenticate and such office or agency shall deliver in exchange
for such temporary Notes an equal aggregate principal amount of
definitive Notes of such series, unless the Company advises the
Trustee to the effect that definitive Notes need not be executed
and furnished until further notice from the Company. Until so
exchanged, the temporary Notes of such series shall be entitled
to the same benefits under this Indenture as definitive Notes of
such series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Note
shall become mutilated or be destroyed, lost or stolen, the
Company (subject to the next succeeding sentence) shall execute,
and upon its request the Trustee (subject as aforesaid) shall
authenticate and deliver, a new Note of the same series bearing a
number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. In every
case the applicant for a substituted Note shall furnish to the
Company and to the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also
furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's
Note and of the ownership thereof. The Trustee may authenticate
any such substituted Note and deliver the same upon the written
request or authorization of any officer of the Company. Upon the
issuance of any substituted Note, the Company may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Note which has matured
or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute
Note, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Note) if the applicant
for such payment shall furnish to the Company and to the Trustee
such security or indemnity as they may require to save them
harmless, and, in case of destruction, loss or theft, evidence to
the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership
thereof.
Every Note issued pursuant to the provisions of this Section
in substitution for any Note which is mutilated, destroyed, lost
or stolen shall constitute an additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or
stolen Note shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Notes of the same series duly issued hereunder. All Notes shall
be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes, and shall
preclude (to the extent lawful) any and all other rights or
remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. All Notes surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall,
if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be canceled by it, and no Notes shall be issued in
lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company, the
Trustee shall deliver to the Company canceled Notes held by the
Trustee. In the absence of such request the Trustee may dispose
of canceled Notes in accordance with its standard procedures and
deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Notes, however, such
acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Notes unless and until the
same are delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Notes,
express or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and
the holders of the Notes, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit
of the parties hereto and of the holders of the Notes.
SECTION 2.10. So long as any of the Notes of any series
remain outstanding there may be an Authenticating Agent for any
or all such series of Notes which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized
to act on behalf of the Trustee to authenticate Notes of such
series issued upon exchange, transfer or partial redemption
thereof, and Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Notes by
the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series except for authentication
upon original issuance or pursuant to Section 2.07 hereof. Each
Authenticating Agent shall be acceptable to the Company and shall
be a corporation which has a combined capital and surplus, as
most recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in which
it is doing business to conduct a trust business, and which is
otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or State
authorities. If at any time any Authenticating Agent shall cease
to be eligible in accordance with these provisions it shall
resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to
the Company. Upon resignation, termination or cessation of
eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent 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 as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant
to Section 2.01 that the Notes of a particular series are to be
issued as a Global Note, then the Company shall execute and the
Trustee shall, in accordance with Section 2.04, authenticate and
deliver, a Global Note which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Notes of such series, (ii) shall be
registered in the name of the Depository or its nominee, (iii)
shall be delivered by the Trustee to the Depository or pursuant
to the Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Note may be
transferred, in whole but not in part, only to another nominee of
the Depository or to a successor Depository or to a nominee of
such successor Depository."
(b) Notwithstanding the provisions of Section 2.05, the
Global Note of a series may be transferred, in whole but not in
part and in the manner provided in Section 2.05, only to another
nominee of the Depository for such series, or to a successor
Depository for such series selected or approved by the Company or
to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Notes
notifies the Company that it is unwilling or unable to continue
as Depository for such series or if at any time the Depository
for such series shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute or regulation
and a successor Depository for such series is not appointed by
the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this
Section 2.11 shall no longer be applicable to the Notes of such
series and the Company will execute, and subject to Section 2.05,
the Trustee will authenticate and deliver Notes of such series in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Note of such series in exchange
for such Global Note. In addition, the Company may at any time
determine that the Notes of any series shall no longer be
represented by a Global Note and that the provisions of this
Section 2.11 shall no longer apply to the Notes of such series.
In such event the Company will execute, and subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate
and deliver Notes of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Note
of such series in exchange for such Global Note. Upon the
exchange of the Global Note for such Notes in definitive
registered form without coupons, in authorized denominations, the
Global Note shall be canceled by the Trustee. Such Notes in
definitive registered form issued in exchange for the Global Note
pursuant to this Section 2.11(c) shall be registered in such
names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Note Registrar. The Trustee
shall deliver such Notes to the Depository for delivery to the
persons in whose names such Notes are so registered.
ARTICLE THREE
REDEMPTION OF NOTES AND SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Notes of any
series issued hereunder on and after the dates and in accordance
with the terms established for such series pursuant to Section
2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a
portion of the Notes of any series in accordance with the right
reserved so to do, it shall give notice of such redemption to
holders of the Notes of such series to be redeemed by mailing,
first class postage prepaid, a notice of such redemption not less
than 30 days and not more than 60 days before the date fixed for
redemption of that series to such holders at their last addresses
as they shall appear upon the Note Register. Any notice which is
mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give
such notice to the holder of any Note of any series designated
for redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the
redemption of any other Notes of such series or any other series.
In the case of any redemption of Notes prior to the expiration of
any restriction on such redemption provided in the terms of such
Notes or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance
with any such restriction.
Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Notes of that
series are to be redeemed, and shall state that payment of the
redemption price of such Notes to be redeemed will be made at the
office or agency of the Company, upon presentation and surrender
of such Notes, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from
and after said date interest will cease to accrue and that the
redemption is for a sinking fund, if such is the case. If less
than all the Notes of a series are to be redeemed, the notice to
the holders of Notes of that series to be redeemed in whole or in
part shall specify the particular Notes to be so redeemed. In
case any Note is to be redeemed in part only, the notice which
relates to such Note shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after
the redemption date, upon surrender of such Note, a new Note or
Notes of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If less than all the Notes of a series are to be
redeemed, the Company shall give the Trustee at least 35 days'
notice in advance of the date fixed for redemption (unless the
Trustee shall agree to a shorter period) as to the aggregate
principal amount of Notes of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other
manner as it shall deem appropriate and fair in its discretion
and which may provide for the selection of a portion or portions
(equal to $1,000 or any integral multiple thereof, subject to
Section 2.01(xiii)) of the principal amount of such Notes of a
denomination larger than $1,000 (subject as aforesaid), the Notes
to be redeemed and shall thereafter promptly notify the Company
in writing of the numbers of the Notes to be redeemed, in whole
or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its Chairman of
the Board, its President, any Vice President, or Treasurer,
instruct the Trustee or any paying agent to call all or any part
of the Notes of a particular series for redemption and to give
notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as
the Trustee or such paying agent may deem advisable. In any case
in which notice of redemption is to be given by the Trustee or
any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Note Register, transfer
books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this
Section.
SECTION 3.03. (a) If the giving of notice of redemption
shall have been completed as above provided, the Notes or
portions of Notes of the series to be redeemed specified in such
notice shall become due and payable on the date and at the place
stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption
and interest on such Notes or portions of Notes shall cease to
accrue on and after the date fixed for redemption, unless the
Company shall default in the payment of such redemption price and
accrued interest with respect to any such Note or portion
thereof. On presentation and surrender of such Notes on or after
the date fixed for redemption at the place of payment specified
in the notice, said Notes shall be paid and redeemed at the
applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption (but if
the date fixed for redemption is an interest payment date, the
interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable
record date pursuant to Section 2.03).
(b) Upon presentation of any Note of such series which is
to be redeemed in part only, the Company shall execute and the
Trustee shall authenticate and the office or agency where the
Note is presented shall deliver to the holder thereof, at the
expense of the Company, a new Note or Notes of the same series,
of authorized denominations in principal amount equal to the
unredeemed portion of the Note so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and
3.06 shall be applicable to any sinking fund for the retirement
of Notes of a series, except as otherwise specified as
contemplated by Section 2.01 for Notes of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Notes of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Notes of any
series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Notes of any series,
the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Notes of such series as
provided for by the terms of Notes of such series.
SECTION 3.05. The Company (i) may deliver Outstanding Notes
of a series (other than any previously called for redemption) and
(ii) may apply as a credit Notes of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Notes or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Notes, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Notes of such series
required to be made pursuant to the terms of such Notes as
provided for by the terms of such series; provided that such
Notes have not been previously so credited. Such Notes shall be
received and credited for such purpose by the Trustee at the
redemption price specified in such Notes for redemption through
operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking
fund payment date for any series of Notes, the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by delivering and crediting Notes
of that series pursuant to Section 3.05 and the basis for such
credit and will, together with such Officers' Certificate,
deliver to the Trustee any Notes to be so delivered. Not less
than 30 days before each such sinking fund payment date the
Trustee shall select the Notes to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and
cause notice of the redemption thereof to be given in the name of
and at the expense of the Company in the manner provided in
Section 3.02, except that the notice of redemption shall also
state that the Notes of such series are being redeemed by
operation of the sinking fund and the sinking fund payment date.
Such notice having been duly given, the redemption of such Notes
shall be made upon the terms and in the manner stated in Section
3.03.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the
Notes as follows:
SECTION 4.01. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and
interest on the Notes of that series at the time and place and in
the manner provided herein and established with respect to such
Notes.
SECTION 4.02. So long as any series of the Notes remain
outstanding, the Company agrees to maintain an office or agency
with respect to each such series, which shall be in the Borough
of Manhattan, the City and State of New York or at such other
location or locations as may be designated as provided in this
Section 4.02, where (i) Notes of that series may be presented for
payment, (ii) Notes of that series may be presented as
hereinabove authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect
of the Notes of that series and this Indenture may be given or
served, such designation to continue with respect to such office
or agency until the Company shall, by written notice signed by
its Chairman of the Board, its President, a Vice President or its
Treasurer and delivered to the Trustee, designate some other
office or agency for such purposes or any of them. If at any
time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, notices and demands. The Trustee will
initially act as Paying Agent for the Notes.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents for all or any series of the Notes, other than the
Trustee, the Company will cause each such paying agent to execute
and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of (and premium, if
any) or interest on the Notes of that series (whether such
sums have been paid to it by the Company or by any other
obligor of such Notes) in trust for the benefit of the
persons entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor of such
Notes) to make any payment of the principal of (and premium,
if any) or interest on the Notes of that series when the
same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2)
above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying
agent; and
(4) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Notes, it will on or before each due
date of the principal of (and premium, if any) or interest on
Notes of that series, set aside, segregate and hold in trust for
the benefit of the persons entitled thereto a sum sufficient to
pay such principal (and premium, if any) or interest so becoming
due on Notes of that series until such sums shall be paid to such
persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it
or any other obligor on such Notes) to take such action.
Whenever the Company shall have one or more paying agents for any
series of Notes, it will, prior to each due date of the principal
of (and premium, if any) or interest on any Notes of that series,
deposit with the paying agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the persons entitled
to such principal, premium or interest, and (unless such paying
agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary
notwithstanding, (i) the agreement to hold sums in trust as
provided in this Section is subject to the provisions of Section
11.04, and (ii) the Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or 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 terms
and conditions as those upon which such sums were held by the
Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released
from all further liability with respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 4.05. The Company will not, while any of the Notes
remain outstanding, consolidate with, or merge into, or merge
into itself, or sell or convey all or substantially all of its
property to any other company unless the provisions of Article
Ten hereof are complied with.
ARTICLE FIVE
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) on each regular record date (as
defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of
each series of Notes as of such regular record date, provided,
that the Company shall not be obligated to furnish or cause to be
furnished such list at any time that the list shall not differ in
any respect from the most recent list furnished to the Trustee by
the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the
Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished; provided, however, no such list need be furnished for
any series for which the Trustee shall be the Note Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Notes contained in
the most recent list furnished to it as provided in Section 5.01
and as to the names and addresses of holders of Notes received by
the Trustee in its capacity as Note Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Notes of a series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Note for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate with
other holders of Notes of such series or holders of all Notes
with respect to their rights under this Indenture or under such
Notes, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of
such application, at its election, either:
(1) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 5.02; or
(2) inform such applicants as to the approximate
number of holders of Notes of such series or of all Notes,
as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in
accordance with the provisions of subsection (a) of this
Section 5.02, and as to the approximate cost of mailing to
such Noteholders the form of proxy or other communication,
if any, specified in such application.
(d) If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each holder of
such series or of all Notes, as the case may be, whose name and
address appears in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of
this Section 5.02, a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file
with the Securities and Exchange Commission (the "Commission"),
together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of
Notes of such series or of all Notes, as the case may be, or
would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all
such Noteholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants
respecting their application.
(e) Each and every holder of the Notes, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any paying agent nor any
Note Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the holders of Notes in accordance with the provisions of
subsection (c) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under said subsection (c).
SECTION 5.03. (a) The Company covenants and agrees to file
with the Trustee, within 30 days after the Company is required to
file the same with the Commission, a copy of the annual reports
and of the information, documents and other reports (or a copy of
such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the
Trustee and the Commission, in accordance with the 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.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the 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
provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable over-night delivery
service which provides for evidence of receipt, to the
Noteholders, as their names and addresses appear upon the Note
Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a)
and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before May 15 in each calendar year in which any
of the Notes are outstanding, or on or before such other day in
each calendar year as the Company and the Trustee may from time
to time agree upon, a certificate from the principal executive
officer, principal financial officer or principal accounting
officer of the Company as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this subsection (d), such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in
which any of the Notes are outstanding, the Trustee shall
transmit by mail, first class postage prepaid, to the
Noteholders, as their names and addresses appear upon the Note
Register, a brief report dated as of the preceding May 15, with
respect to any of the following events which may have occurred
within the previous twelve months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09,
and its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of
Subsection 310 of the Trust Indenture Act;
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Notes, on any property or
funds held or collected by it as Trustee if such advances so
remaining unpaid aggregate more than 1/2 of 1% of the
principal amount of the Notes outstanding on the date of
such report;
(4) any change to the amount, interest rate, and
maturity date of all other indebtedness owing by the
Company, or by any other obligor on the Notes, to the
Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as
collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described
in Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of
property subject to the lien of this Indenture (and the
consideration thereof, if any) which it has not previously
reported;
(7) any additional issue of Notes which the Trustee
has not previously reported; and
(8) any action taken by the Trustee in the performance
of its duties under this Indenture which it has not
previously reported and which in its opinion materially
affects the Notes or the Notes of any series, except any
action in respect of a default, notice of which has been or
is to be withheld by it in accordance with the provisions of
Section 6.07.
(b) The Trustee shall transmit by mail, first class postage
prepaid, to the Noteholders, as their names and addresses appear
upon the Note Register, a brief report with respect to the
character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof)
made by the Trustee as such since the date of the last report
transmitted pursuant to the provisions of subsection (a) of this
Section (or if no such report has yet been so transmitted, since
the date of execution of this Indenture), for the reimbursement
of which it claims or may claim a lien or charge prior to that of
the Notes of any series on property or funds held or collected by
it as Trustee, and which it has not previously reported pursuant
to this subsection if such advances remaining unpaid at any time
aggregate more than 10% of the principal amount of Notes of such
series outstanding at such time, such report to be transmitted
within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Noteholders, be filed by the Trustee with the
Company, with each stock exchange upon which any Notes are listed
(if so listed) and also with the Commission. The Company agrees
to notify the Trustee when any Notes become listed on any stock
exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to
Notes of a particular series, "Event of Default" means any one or
more of the following events which has occurred and is
continuing:
(1) default in the payment of any installment of
interest upon any of the Notes of that series, as and when
the same shall become due and payable, and continuance of
such default for a period of 30 days;
(2) default in the payment of the principal of (or
premium, if any, on) any of the Notes of that series as and
when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise;
(3) default in the payment of any sinking fund
obligation with respect to any of the Notes of that series
established with respect to that series, and continuance of
such default for a period of 30 days;
(4) failure on the part of the Company duly to observe
or perform any other of the covenants or agreements on the
part of the Company with respect to that series contained in
such Notes or otherwise established with respect to that
series of Notes pursuant to Section 2.01 hereof or contained
in this Indenture (other than a covenant or agreement which
has been expressly included in this Indenture solely for the
benefit of one or more series of Notes other than such
series) for a period of 90 days after the date on which
written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by
the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in
principal amount of the Notes of that series at the time
outstanding;
(5) a decree or order by a court having jurisdiction
in the premises shall have been entered adjudging the
Company as bankrupt or insolvent, or approving as properly
filed a petition seeking liquidation or reorganization of
the Company under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, and such decree or
order shall have continued unvacated and unstayed for a
period of 90 consecutive days; or an involuntary case shall
be commenced under such Code in respect of the Company and
shall continue undismissed for a period of 90 consecutive
days or an order for relief in such case shall have been
entered; or a decree or order of a court having jurisdiction
in the premises shall have been entered for the appointment
on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy
or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, and such decree or
order shall have remained in force unvacated and unstayed
for a period of 90 consecutive days;
(6) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking liquidation or
reorganization under the Federal Bankruptcy Code or any
other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent
to the appointment on the ground of insolvency or bankruptcy
of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its
property, or shall make an assignment for the benefit of
creditors; or
(7) the occurrence of any other Event of Default with
respect to Notes of such series, as contemplated by Section
2.01 hereof.
(b) In each and every such case, unless the principal of
all the Notes of that series shall have already become due and
payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Notes of that series then
outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by such Noteholders), may declare the
principal of all the Notes of that series to be due and payable
immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything contained in
this Indenture or in the Notes of that series or established with
respect to that series pursuant to Section 2.01 hereof to the
contrary notwithstanding.
(c) Section 6.01(b), however, is subject to the condition
that if, at any time after the principal of the Notes of that
series shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall
have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all
the Notes of that series and the principal of (and premium, if
any, on) any and all Notes of that series which shall have become
due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Notes of that series to the date of such payment or deposit) and
the amount payable to the Trustee under Section 7.06, and any and
all defaults under the Indenture, other than the nonpayment of
principal on Notes of that series which shall not have become due
by their terms, shall have been remedied or waived as provided in
Section 6.06, then and in every such case the holders of a
majority in aggregate principal amount of the Notes of that
series then outstanding, by written notice to the Company and to
the Trustee, may rescind and annul such declaration and its
consequences with respect to that series of Notes; but no such
rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Notes of that series under this Indenture
and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason
or shall have been determined adversely to the Trustee, then and
in every such case the Company and the Trustee shall be restored
respectively to their former positions and rights hereunder, and
all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
SECTION 6.02. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of
interest on any of the Notes of a series, or any payment required
by any sinking or analogous fund established with respect to that
series as and when the same shall have become due and payable,
and such default shall have continued for a period of 30 days, or
(2) in case default shall be made in the payment of the principal
of (or premium, if any, on) any of the Notes of a series when the
same shall have become due and payable, whether upon maturity of
the Notes of a series or upon redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Notes of
that series, the whole amount that then shall have become due and
payable on all such Notes for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the
overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law and
without duplication of any other amounts paid by the Company in
respect thereof) upon overdue installments of interest at the
rate per annum expressed in the Notes of that series; and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
other obligor upon the Notes of that series and collect in the
manner provided by law out of the property of the Company or
other obligor upon the Notes of that series wherever situated the
monies adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement,
composition or other judicial proceedings affecting the Company,
any other obligor on such Notes, or the creditors or property of
either, the Trustee shall have power to intervene in such
proceedings and take any action therein that may be permitted by
the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the
claims of the Trustee and of the holders of Notes of such series
allowed for the entire amount due and payable by the Company or
such other obligor under the Indenture at the date of institution
of such proceedings and for any additional amount which may
become due and payable by the Company or such other obligor after
such date, and to collect and receive any monies or other
property payable or deliverable on any such claim, and to
distribute the same after the deduction of the amount payable to
the Trustee under Section 7.06; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by
each of the holders of Notes of such series to make such payments
to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Noteholders, to
pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to
Notes of that series, may be enforced by the Trustee without the
possession of any of such Notes, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or
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 payment to the Trustee of any amounts
due under Section 7.06, be for the ratable benefit of the holders
of the Notes of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce
any of such rights, either at law or in equity or in bankruptcy
or otherwise, whether for the specific enforcement of any
covenant or agreement contained in the Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes of that series or
the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Noteholder in any such
proceeding.
SECTION 6.03. Any monies collected by the Trustee pursuant
to Section 6.02 with respect to a particular series of Notes
shall be applied in the order following, at the date or dates
fixed by the Trustee and, in case of the distribution of such
monies on account of principal (or premium, if any) or interest,
upon presentation of the several Notes of that series, and
stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee under
Section 7.06;
SECOND: To the payment of the amounts then due and
unpaid upon Notes of such series for principal (and premium,
if any) and interest, 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 Notes for principal (and premium, if
any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Note of any series shall
have any right by virtue or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Indenture or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the
continuance thereof with respect to Notes of such series
specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate
principal amount of the Notes of such series then outstanding
shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee
for 60 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action,
suit or proceeding; it being understood and intended, and being
expressly covenanted by the taker and holder of every Note of
such series with every other such taker and holder and the
Trustee, that no one or more holders of Notes of such series
shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Notes,
or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable
and common benefit of all holders of Notes of such series. For
the protection and enforcement of the provisions of this Section,
each and every Noteholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Note to receive payment
of the principal of (and premium, if any) and interest on such
Note, as therein provided, on or after the respective due dates
expressed in such Note (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any
such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of
such holder.
SECTION 6.05. (a) All powers and remedies given by this
Article to the Trustee or to the Noteholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any
others thereof or of any other powers and remedies available to
the Trustee or the holders of the Notes, by judicial proceedings
or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise
established with respect to such Notes.
(b) No delay or omission of the Trustee or of any holder of
any of the Notes to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Noteholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Notes of any series at the time
outstanding, determined in accordance with Section 8.04, 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 such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this
Indenture or unduly prejudicial to the rights of holders of Notes
of any other series at the time outstanding determined in
accordance with Section 8.04 not parties thereto. Subject to the
provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the
Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Notes of any series at the time
outstanding affected thereby, determined in accordance with
Section 8.04, may on behalf of the holders of all of the Notes of
such series waive any past default in the performance of any of
the covenants contained herein or established pursuant to Section
2.01 with respect to such series and its consequences, except a
default in the payment of the principal of, or premium, if any,
or interest on, any of the Notes of that series as and when the
same shall become due by the terms of such Notes otherwise than
by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal otherwise than by acceleration and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)))
or a call for redemption of Notes of that series. Upon any such
waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee
and the holders of the Notes of such series shall be restored to
their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series,
transmit by mail, first class postage prepaid, to the holders of
Notes of that series, as their names and addresses appear upon
the Note Register, notice of all defaults with respect to that
series known to the Trustee, unless such defaults shall have been
cured or waived before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined
to be the events specified in subsections (1), (2), (3), (4),
(5), (6) and (7) of Section 6.01(a), not including any periods of
grace provided for therein and irrespective of the giving of
notice provided for by subsection (4) of Section 6.01(a));
provided, that, except in the case of default in the payment of
the principal of (or premium, if any) or interest on any of the
Notes of that series or in the payment of any sinking or
analogous fund installment established with respect to that
series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible
Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of
Notes of that series; provided further, that in the case of any
default of the character specified in Section 6.01(a)(4) with
respect to Notes of such series no such notice to the holders of
the Notes of that series shall be given until at least 30 days
after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under subsection (a)(1), (a)(2) or
(a)(3) of Section 6.01 as long as the Trustee is acting as paying
agent for such series of Notes or (ii) any default as to which
the Trustee shall have received written notice or a Responsible
Officer charged with the administration of this Indenture shall
have obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each
holder of any Notes by his or her acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken 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
Noteholder, or group of Noteholders, holding more than 10% in
aggregate principal amount of the outstanding Notes of any
series, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of (or premium, if
any) or interest on any Note of such series, on or after the
respective due dates expressed in such Note or established
pursuant to this Indenture.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the occurrence of
an Event of Default with respect to Notes of a series and after
the curing of all Events of Default with respect to Notes of that
series which may have occurred, shall undertake to perform with
respect to Notes of such series such duties and only such duties
as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee. In case an Event of Default with respect to
Notes of a series has occurred (which has not been cured or
waived), the Trustee shall exercise with respect to Notes of that
series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) 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
with respect to Notes of a series and after the curing or
waiving of all such Events of Default with respect to that
series which may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to Notes of such series be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with
respect to Notes of such series except for the
performance of such duties and obligations as are
specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to Notes of
such series 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 which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the holders of not less
than a majority in principal amount of the Notes of any
series at the time outstanding relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect
to the Notes of that series; and
(4) none of the provisions contained in 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 or in the exercise of any of its rights
or powers, if the Trustee reasonably believes that the
repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(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, demand, approval,
bond, security or other paper or document believed by it (i) to
be genuine and (ii) to have been signed or presented by the
proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company by
the Chairman of the Board, the President, any Vice President or
the Treasurer and by the Secretary or an Assistant Secretary
(unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken or suffered or omitted hereunder in good faith and
in reliance thereon;
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Noteholders, pursuant
to the provisions of this Indenture, unless such Noteholders
shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing herein
contained shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to a
series of the Notes (which has not been cured or waived) to
exercise with respect to Notes of that series such of the rights
and powers vested in it by this Indenture, and to 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;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(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, consent, direction, order, demand, approval, bond,
security, or other papers or documents, unless requested in
writing so to do by the holders of not less than a majority in
principal amount of the outstanding Notes of the particular
series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the
Company upon demand. Notwithstanding the foregoing, the Trustee,
in its direction, may make such further inquiry or investigation
into such facts or matters as it may see fit. In making any
investigation required or authorized by this subparagraph, the
Trustee shall be entitled to examine books, records and premises
of the Company, personally or by agent or attorney;
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty.
SECTION 7.03. (a) The recitals contained herein and in the
Notes (other than the Certificate of Authentication on the Notes)
shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Notes.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Notes or of the proceeds
of such Notes, or for the use or application of any monies paid
over by the Trustee in accordance with any provision of this
Indenture or established pursuant to Section 2.01, or for the use
or application of any monies received by any paying agent other
than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Note
Registrar, in its individual or any other capacity, may become
the owner or pledgee of Notes with the same rights it would have
if it were not Trustee, paying agent or Note Registrar.
SECTION 7.05. Subject to the provisions of Section 11.04,
all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be under
no liability for interest on any monies received by it hereunder
except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in
the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the
Trustee, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
of the provisions of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its
counsel and agents and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may
arise from its negligence, willful misconduct or bad faith. The
Company also covenants to indemnify the Trustee (and its
officers, agents, directors and employees) for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence, willful misconduct or bad faith on the part of the
Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs
and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Notes upon all
property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of
particular Notes.
(c) The provisions of this Section 7.06 shall survive the
satisfaction and discharge of this Indenture or the appointment
of a successor trustee.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed)
may, in the absence of bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the
absence of bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted
to be taken by it under the provisions of this Indenture upon the
faith thereof.
SECTION 7.08. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 7.09. There shall at all times be a Trustee with
respect to the Notes issued hereunder which shall at all times be
a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or other person
permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million dollars, and subject
to supervision or examination by Federal, State, Territorial, or
District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any person
directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case at
any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in
Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Notes of
one or more series by giving written notice thereof to the
Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Noteholders of such series, as
their names and addresses appear upon the Note Register. Upon
receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Notes of such series
by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed
and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor trustee with respect to Notes of such series, or any
Noteholder of that series who has been a bona fide holder of a
Note or Notes for at least six months may, subject to the
provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by
the Company or by any Noteholder who has been a bona fide
holder of a Note or Notes for at least six months; or
(2) The Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Company
or by any such Noteholder; 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, the Company may remove the Trustee with
respect to all Notes and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.08, unless the Trustee's
duty to resign is stayed as provided herein, any Noteholder who
has been a bona fide holder of a Note or Notes 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 and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint
a successor trustee.
(c) The holders of a majority in aggregate principal amount
of the Notes of any series at the time outstanding may at any
time remove the Trustee with respect to such series and appoint a
successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Notes of a
series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor
trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this
Section may be appointed with respect to the Notes of one or more
series or all of such series, and at any time there shall be only
one Trustee with respect to the Notes of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of
a successor trustee with respect to all Notes, every such
successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the
Company or the successor trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
trustee with respect to the Notes of one or more (but not all)
series, the Company, the retiring Trustee and each successor
trustee with respect to the Notes 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 Notes of that or those series to
which the appointment of such successor trustee relates, (2)
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 Notes 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, 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 that no
Trustee shall be responsible for any act or failure to act on the
part of any other Trustee hereunder; 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, such retiring Trustee shall with respect
to the Notes of that or those series to which the appointment of
such successor trustee relates have no further responsibility for
the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this
Indenture, 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 Notes of that or those series to which the appointment of
such successor trustee relates; but, on request of the Company or
any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the
Notes of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, 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.
(e) Upon acceptance of appointment by a successor trustee
as provided in this Section, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class
postage prepaid, to the Noteholders, as their names and addresses
appear upon the Note Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such
notice to be transmitted at the expense of the Company.
SECTION 7.12. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section
7.09, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. In case any Notes 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 Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes.
SECTION 7.13. If and when the Trustee shall become a
creditor of the Company (or any other obligor upon the Notes),
the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding collection of claims against the Company
(or any obligor upon the Notes).
ARTICLE EIGHT
CONCERNING THE NOTEHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate
principal amount of the Notes of a particular series may take any
action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the
holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any
number of instruments of similar tenor executed by such holders
of Notes of that series in person or by agent or proxy appointed
in writing.
If the Company shall solicit from the Noteholders of any
series any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers' Certificate, fix in advance a record
date for such series for the determination of Noteholders
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, 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 action may be given before or after the record
date, but only the Noteholders of record at the close of business
on the record date shall be deemed to be Noteholders for the
purposes of determining whether Noteholders of the requisite
proportion of outstanding Notes of that series have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that
purpose the outstanding Notes of that series shall be computed as
of the record date; provided that no such authorization,
agreement or consent by such Noteholders on the record date shall
be deemed effective unless it shall become effective pursuant to
the provisions of this Indenture not later than six months after
the record date.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Noteholder (such
proof will not require notarization) or his agent or proxy and
proof of the holding by any person of any of the Notes shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such person
of any instrument may be proved in any reasonable manner
acceptable to the Trustee.
(b) The ownership of Notes shall be proved by the Note
Register of such Notes or by a certificate of the Note Registrar
thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration
of transfer of any Note, the Company, the Trustee, any paying
agent and any Note Registrar may deem and treat the person in
whose name such Note shall be registered upon the books of the
Company as the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Note Registrar)
for the purpose of receiving payment of or on account of the
principal of, premium, if any, and (subject to Section 2.03)
interest on such Note and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Note
Registrar shall be affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the
requisite aggregate principal amount of Notes of a particular
series have concurred in any direction, consent or waiver under
this Indenture, Notes of that series which are owned by the
Company or any other obligor on the Notes of that series or by
any person directly or indirectly controlling or controlled by or
under common control with the Company or any other obligor on the
Notes of that series shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver,
only Notes of such series which the Trustee actually knows are so
owned shall be so disregarded. Notes so owned which have been
pledged in good faith may be regarded as outstanding for the
purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Notes and that the pledgee is not a person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such
other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Notes of a particular series
specified in this Indenture in connection with such action, any
holder of a Note of that series which is shown by the evidence to
be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Note. Except as aforesaid any
such action taken by the holder of any Note shall be conclusive
and binding upon such holder and upon all future holders and
owners of such Note, and of any Note issued in exchange therefor,
on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is
made upon such Note. Any action taken by the holders of the
majority or percentage in aggregate principal amount of the Notes
of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Notes of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, and the
Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Noteholders, for one or more of the
following purposes:
(a) to evidence the succession of another corporation to
the Company, and the assumption by any such successor of the
covenants of the Company contained herein or otherwise
established with respect to the Notes; or
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the
protection of the holders of the Notes of all or any series, and
to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default with
respect to such series permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set
forth; provided, however, that in respect of any such additional
covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available
to the Trustee upon such default or may limit the right of the
holders of a majority in aggregate principal amount of the Notes
of such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising
under this Indenture as shall not be inconsistent with the
provisions of this Indenture and shall not adversely affect the
interests of the holders of the Notes of any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Note outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(e) to establish the form or terms of Notes of any series
as permitted by Section 2.01.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Notes at the
time outstanding, notwithstanding any of the provisions of
Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in
aggregate principal amount of the Notes of each series affected
by such supplemental indenture or indentures at the time
outstanding, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of any supplemental indenture
or of modifying in any manner the rights of the holders of the
Notes of such series under this Indenture; provided, however,
that no such supplemental indenture shall (i) extend the fixed
maturity of any Notes of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each
Note so affected or (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of
each Note then outstanding and affected thereby.
Upon the request of the Company, and upon the filing with
the Trustee of evidence of the consent of Noteholders required to
consent thereto as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated
to enter into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders
of any series affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Noteholders of all series
affected thereby as their names and addresses appear upon the
Note Register. Any failure of the Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Notes of the series
affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notes of any series, affected by a
supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form
meets the requirements of any exchange upon which such series may
be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Notes of that
series so modified as to conform, in the opinion of the Board of
Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the
Notes of that series then outstanding.
SECTION 9.05. The Trustee, subject to the provisions of
Section 7.01, shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to
this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under
the provisions of this Article to join in the execution thereof.
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01. Nothing contained in this Indenture or in any
of the Notes shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of all or
substantially all of the property of the Company or its successor
or successors as an entirety, or substantially as an entirety, to
any other corporation (whether or not affiliated with the Company
or its successor or successors) authorized to acquire and operate
the same; provided, however, the Company hereby covenants and
agrees that, upon any such consolidation, merger, sale,
conveyance, transfer or other disposition, the due and punctual
payment of the principal of (premium, if any) and interest on all
of the Notes of all series in accordance with the terms of each
series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or
performed by the Company, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have
acquired such property.
SECTION 10.02. (a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the
principal of, premium, if any, and interest on all of the Notes
of all series outstanding and the due and punctual performance of
all of the covenants and conditions of this Indenture or
established with respect to each series of the Notes pursuant to
Section 2.01 to be performed by the Company with respect to each
series, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and thereupon
the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Notes. Such successor
corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company or any other
predecessor obligor on the Notes, any or all of the Notes
issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order
of such successor company, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any
Notes which previously shall have been signed and delivered by
the officers of the predecessor Company to the Trustee for
authentication, and any Notes which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Notes so issued shall in all respects
have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been
issued at the date of the execution hereof.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Notes shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated with
the Company).
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE ELEVEN
DEFEASANCE AND CONDITIONS TO DEFEASANCE
SECTION 11.01. Notes of a series may be defeased in
accordance with their terms and, unless the Company Order or
supplemental indenture establishing the series otherwise
provides, in accordance with this Article.
The Company at any time may terminate as to a series all of
its obligations for such series under this Indenture ("legal
defeasance option"). The Company at any time may terminate as to
a series its obligations, if any, under any restrictive covenant
which may be applicable to a particular series ("covenant
defeasance option"). However, in the case of the legal
defeasance option, the Company's obligations in Sections 2.05,
2.07, 4.02, 7.06, 7.10 and 11.04 shall survive until the Notes of
the series are no longer outstanding; thereafter the Company's
obligations in Section 7.10 shall survive.
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option, a
series may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option, a series
may not be accelerated by reference to any restrictive covenant
which may be applicable to a particular series so defeased under
the terms of the series.
The Trustee upon request shall acknowledge in writing the
discharge of those obligations that the Company terminates.
The Company may exercise as to a series its legal defeasance
option or its covenant defeasance option if:
(1) The Company irrevocably deposits in trust with the
Trustee or another trustee money or Governmental Obligations
or a combination of money and Governmental Obligations;
(2) The Company delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and
interest when due on the deposited Governmental Obligations
with out reinvestment plus any deposited money without
investment will provide cash at such times and in such
amounts as will be sufficient to pay principal and interest
when due on all the Notes of the series to maturity or
redemption, as the case may be;
(3) immediately after the deposit no Default exists;
and
(4) the Company delivers to the Trustee an Opinion of
Counsel to the effect that Holders of the series will not
recognize income, gain or loss for Federal income tax
purposes as a result of the defeasance.
In the event the Company exercises its option to effect a
covenant defeasance with respect to the Notes of any series as
described above and the Notes of that series are thereafter
declared due and payable because of the occurrence of any Event
of Default other than the Event of Default caused by failing to
comply with the covenants which are defeased, the amount of money
and securities on deposit with the Trustee would be sufficient to
pay amounts due on the Notes of that series at the time of their
stated maturity but may not be sufficient to pay amounts due on
the Notes of that series at the time of the acceleration
resulting from such Event of Default. However, the Company shall
remain liable for such payments.
SECTION 11.02. All monies or Governmental Obligations
deposited with the Trustee pursuant to Section 11.01 shall be
held in trust and shall be available for payment as due, either
directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the particular
series of Notes for the payment or redemption of which such
monies or Governmental Obligations have been deposited with the
Trustee.
SECTION 11.03. In connection with the satisfaction and
discharge of this Indenture all monies or Governmental
Obligations then held by any paying agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from
all further liability with respect to such monies or Governmental
Obligations.
SECTION 11.04. Any monies or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by
the Company, in trust for payment of principal of or premium or
interest on the Notes of a particular series that are not applied
but remain unclaimed by the holders of such Notes for at least
two years after the date upon which the principal of (and
premium, if any) or interest on such Notes shall have
respectively become due and payable, upon the written request of
the Company and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law,
shall be repaid to the Company on May 31 of each year or (if then
held by the Company) shall be discharged from such trust; and
thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such monies or Governmental
Obligations, and the holder of any of the Notes entitled to
receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
SECTION 11.05. In connection with any satisfaction and
discharge of this Indenture pursuant to this Article Eleven, the
Company shall deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel to the effect that all conditions precedent
in this Indenture provided for relating to such satisfaction and
discharge have been complied with.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Note, or for
any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, stockholder, officer or director,
past, present or future as such, of the Company or of any
predecessor or successor corporation, either directly or through
the Company or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders,
officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained
in this Indenture or in any of the Notes or implied therefrom;
and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as
such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Notes
or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Notes.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.02. Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
SECTION 13.03. The Company by instrument in writing executed
by authority of two-thirds of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved
to the Company under this Indenture and thereupon such power so
surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein
any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by
the holders of Notes to or on the Company may be given or served
by being deposited first class postage prepaid in a post office
letter box addressed (until another address is filed in writing
by the Company with the Trustee), as follows: Appalachian Power
Company, 00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, with a copy
to the Company in care of American Electric Power Service
Corporation, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention:
Treasurer. Any notice, election, request or demand by the
Company or any Noteholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if
given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.05. This Indenture and each Note shall be deemed
to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the
laws of said State.
SECTION 13.06. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent 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
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture (other than the
certificate provided pursuant to Section 5.03(d) of this
Indenture) shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condition;
(2) 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; (3)
a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or
covenant has been complied with.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Company Order, or established in one or more
indentures supplemental to this Indenture, in any case where the
date of maturity of interest or principal of any Note or the date
of redemption of any Note shall not be a business day then
payment of interest or principal (and premium, if any) may be
made on the next succeeding business day with the same force and
effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal
date.
SECTION 13.08. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by the Trust Indenture Act, such imposed duties shall
control.
SECTION 13.09. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Notes of any series shall
for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of
such Notes, but this Indenture and such Notes shall be construed
as if such invalid or illegal or unenforceable provision had
never been contained herein or therein.
SECTION 13.11. The Company will have the right at all times
to assign any of its rights or obligations under the Indenture to
a direct or indirect wholly owned subsidiary of the Company;
provided that, in the event of any such assignment, the Company
will remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the
parties thereto.
Bankers Trust Company, as Trustee, hereby accepts the trusts
in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
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.
APPALACHIAN POWER COMPANY
By___________________
Treasurer
Attest:
By_____________________
Assistant Secretary
BANKERS TRUST COMPANY,
as Trustee
By________________________
Vice President
Attest:
By_____________________
Trust Officer
State of Ohio }
County of Franklin, } ss:
On this ____ day of __________, 199_, personally appeared
before me, a Notary Public within and for said County in the
State aforesaid, ______________ and ________________, to me known
and known to me to be respectively the Treasurer and an Assistant
Secretary of APPALACHIAN POWER COMPANY, one of the corporations
named in and which executed the foregoing instrument, who
severally acknowledged that they did sign and xxxx said
instrument as such Treasurer and Assistant Secretary for and on
behalf of said corporation and that the same is their free act
and deed as such Treasurer and Assistant Secretary, respectively,
and the free and corporate act and deed of said corporation.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ____ day of __________, 199_.
[Notarial Seal]
____________________________
Notary Public, State of ________
My Commission Expires: ________
State of ________ }
County of _______ } ss:
Be it remembered, that on this ____ day of __________, 199_,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, Bankers Trust Company, one
of the corporations named in and which executed the foregoing
instrument, by _____________ one of its Vice Presidents, and by
________________, one of its Trust Officers, to me known and
known by me to be such Vice President and Trust Officer,
respectively, who severally duly acknowledged the signing and
sealing of the foregoing instrument to be their free act and
voluntary deed, and the free act and voluntary deed of each of
them as such Vice President and Trust Officer, respectively, and
the free act and voluntary deed of said corporation, for the uses
and purposes therein expressed and mentioned.
In Witness Whereof, I have hereunto set my hand and notarial
seal this ____ day of __________, 199_.
[Notarial Seal]
____________________________________
Notary Public, State of ________
My Commission Expires: ________
