EXHIBIT 99.2
WESTERN MASSACHUSETTS ELECTRIC COMPANY
and
THE BANK OF NEW YORK,
AS TRUSTEE
__________________
INDENTURE
Dated as of September 1, 2003
__________________
SENIOR NOTES
Reconciliation and tie between the Trust Indenture Act of 1939 and
Indenture, dated as of September 1, 2003
Trust
Indenture Indenture Section
Act Section
Section 310(a)(1) 609
(a)(2) Not Applicable
(a)(4) Not Applicable
(a)(5) 609
(b) 608, 610
(c) Not Applicable
Section 311(a) 613(a)
(b) 613 (b)
(b)(2) Not Applicable
(c) Not Applicable
Section 312(a) 701, 702(a)
(b) 702(b)
(c) 702(c)
Section 313(a) 703(a)
(b) 703(b)
(c) 703(a), 703(b)
(d) 703(c)
Section 314(a) 704
(a)(4) 1008
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
(f) Not Applicable
Section 315(a) 601(a)
(b) 602, 703(a)(8)
(c) 601(b)
(d) 601(c)
(d)(1) 601(a)(1)
(d)(2) 601(c)(2)
(d)(3) 601(c)(3)
(e) 514
Section 316(a)(1)(A) 512
(a)(1)(B) 502, 513
(a)(2) Not Applicable
(b) 508
(c) 104(e)
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 107
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Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
INDENTURE, dated as of September 1, 2003, between WESTERN
MASSACHUSETTS ELECTRIC COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Massachusetts (the
"Company"), having its principal office at 000 Xxxxx Xxxx Xxxxxx,
Xxxx Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 and THE BANK OF NEW YORK, a
New York banking corporation, organized and existing under the
laws of the State of New York, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time
of certain of its notes, debentures or other evidences of
indebtedness (the "Securities"), to be issued in one or more
series as in this Indenture provided.
All things necessary to make this Indenture a valid and
legally binding agreement of the Company, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders (as defined herein) thereof, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Section have the meanings
ascribed to them in this Section and include the plural as well as
the singular;
(ii) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings ascribed to them therein;
(iii) all accounting terms not otherwise defined herein have
the meanings ascribed to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(iv) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision; and
(v) certain terms used in Section 613 have the meanings
ascribed to them in such Section.
The following terms have the following meanings:
"Act", when used with respect to any Holder, has the
meaning specified in Section 104 hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control", when used
with respect to any specified Person, means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Value" means, as to any particular lease
under which the Company is at any time liable as lessee and at
any date as of which the amount thereof is to be determined, the
amount equal to the greater of (i) the net proceeds from the sale
or transfer of the property leased pursuant to the Sale and
Leaseback Transaction or (ii) the net book value of the property,
as determined by the Company in accordance with generally
accepted accounting principles at the time of entering into the
Sale and Leaseback Transaction, in either case multiplied by a
fraction, the numerator of which shall be equal to the number of
full years of the term of the lease that is part of the Sale and
Leaseback Transaction remaining at the time of determination and
the denominator of which shall be equal to the number of full
years of the term, without regard, in any case, to any renewal or
extension options contained in the lease.
"Authenticating Agent" means any Person authorized to authenticate
and deliver the Securities on behalf of the Trustee pursuant to Section
614 hereof.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each day which is not a Saturday, a Sunday or a day on which
banking institutions in that Place of Payment are authorized or
obligated by law to remain closed.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Order" or "Company Request" means, respectively, a
written order or request signed in the name of the Company by its Chief
Executive Officer, President, Vice President or a General Manager, and
by its Treasurer, an Assistant Treasurer (of any designation), Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
in New York, New York, at which at any particular time its corporate
trust business is administered, which at the date hereof is 000 Xxxxxxx
Xxxxxx, Xxxxx 0X, Xxx Xxxx, XX 00000, Attention: Corporate Trust
Administration.
"corporation" means a corporation, association, company,
joint-stock company, limited liability company or business trust.
"Debt" means, with respect to any Person, any notes, bonds,
debentures or other evidences of indebtedness for borrowed
money.
"default" for purposes of Section 601 of this Indenture means an
"Event of Default" as specified in Section 501 hereof, and for purposes
of Section 310(b) of the Trust Indenture Act, "default" means an "Event
of Default" as specified in Section 501 hereof but exclusive of any
period of grace or requirement of notice.
"Defaulted Interest" has the meaning specified in Section 307
hereof.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant
to Section 301 hereof, which must be a clearing agency registered under
the Exchange Act, and, if so provided pursuant to Section 301 hereof
with respect to the Securities of a series, any successor to such
Person. If at any time there is more than one such Person, "Depositary"
shall mean, with respect to any series of Securities, the qualifying
entity which has been appointed with respect to the Securities of that
series.
"Discharged" means, with respect to the Securities of any series,
the discharge of the entire Indebtedness represented by, and obligations
of the Company under, the Securities of such series in the satisfaction
of all the obligations of the Company under this Indenture relating to
the Securities of such series, except (A) the rights of Holders of the
Securities of such series to receive, from the trust fund described in
Section 403 hereof, payment of the principal of and interest and
premium, if any, on the Securities of such series when such payments are
due, (B) the Company's obligations with respect to the Securities of
such series with respect to registration, transfer, exchange and
maintenance of a Place of Payment and (C) the rights, powers,
trusts, duties, protections and immunities of the Trustee under
this Indenture.
"Event of Default" has the meaning specified in Section 501 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Security" means a Security evidencing all or part of a
series of Securities, issued to the Depositary for such series or its
nominee and registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means, with respect to any Person (without
duplication), (a) any liability of such Person (1) for borrowed money
or under any reimbursement obligation relating to a letter of credit,
financial bond or similar instrument or agreement, (2) evidenced by a
bond, note, debenture or similar instrument or agreement (including a
purchase money obligation) given in connection with the acquisition of
any business, properties or assets of any kind (other than a trade
payable or a current liability arising in the ordinary course of
business or a performance bond or similar obligation), (3) for the
payment of money relating to any obligations under any capital lease of
real or personal property; (b) any liability of others described in
the preceding clause (a) that the Person has guaranteed or that
is otherwise its legal liability; and (c) any amendment,
supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses
(a) and (b) above. For the purpose of determining any particular
amount of Indebtedness under this definition, guarantees of (or
obligations with respect to letters of credit or financial bonds
supporting) Indebtedness otherwise included in the determination
of such amount shall not be included.
"Indenture" means this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and includes the terms of particular series of
Securities established as contemplated by Section 301 hereof; provided,
however, that if at any time more than one Person is acting as Trustee
under this instrument due to the appointment of one or more separate
Trustees for any one or more separate series of Securities pursuant to
Section 610, "Indenture" shall mean, with respect to such series of
Securities for which any such Person is Trustee, this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the terms
of particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities
for which such Person is not Trustee, regardless of when such
provisions or terms were adopted, and exclusive of any provisions or
terms adopted by means of one or more indentures supplemental hereto
executed and delivered after such Person had become such Trustee but
to which such Person, as such Trustee, was not a party.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Lien" means, with respect to any property or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, security interest,
lien, encumbrance, or other security arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including any
conditional sale or other title retention agreement having substantially
the same economic effect as any of the foregoing).
"Maturity", when used with respect to any Security, means the
date on which the principal or an installment of principal of such
Security becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Net Tangible Assets" means the total of all assets (including
revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise) appearing on a balance sheet of the Company
and its Subsidiaries, net of applicable reserves and deductions, but
excluding goodwill, trade names, trademarks, patents, unamortized debt
discount and all other like intangible assets (which term shall not be
construed to include such revaluations), less the aggregate of the
current liabilities of the Company and its Subsidiaries appearing on
such balance sheet.
"Officers' Certificate" means a certificate signed by the Company's
Chief Executive Officer, President, Vice President, or General Manager
and by its Treasurer, an Assistant Treasurer (of any designation), the
Clerk or an Assistant Clerk, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or regular counsel for the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 hereof.
"Outstanding", when used with respect to Securities of any series,
means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment
or redemption money or U.S. Government Obligations (to the
extent provided in Article Four) in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company acts as its own Paying
Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee have been made; and
(iii) Securities which have been paid pursuant to Section
306 hereof or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder, (a) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 hereof, (b) if, as of
such date, the principal amount payable at the Stated Maturity
of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the
amount as specified or determined as contemplated by Section
301, (c) the principal amount of a Security denominated in one
or more foreign currencies or currency units which shall be
deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as
contemplated by Section 301, of the principal amount of such
Security (or, in the case of a Security described in clause
(a) or (b) above, of the amount determined as provided in such
clause), and (d) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to
be Outstanding, except that in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so
owned as described in (d) above which have been pledged in good
faith may be regarded as Outstanding if the pledgee certifies
to the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of
a series from time to time the specific terms of which
Securities, including without limitation, the rate or rates of
interest (or formula for determining the rate or rates of
interest), if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
"Person" means any individual, corporation,
partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where the
principal of (and premium, if any) and interest, if any, on the
Securities of that series are payable as specified in or as
contemplated by Section 301 hereof.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 hereof in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Security shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture, exclusive of accrued and
unpaid interest, if any.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301
hereof.
"Repayment Price", when used with respect to any
Security to be repaid at the option of the Holder, means the
price specified in such Security or pursuant to this Indenture at
which it is to be repaid pursuant to such Security.
"Responsible Officer", when used with respect to the
Trustee, means any Vice President or any officer of the Trustee,
which in each case is assigned to its Corporate Trust Department,
and also means, with respect to a particular corporate trust
matter, any other trust officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Sale and Leaseback Transaction" means any transaction
or series of related transactions relating to property now owned
or hereafter acquired by the Company whereby the Company
transfers the property to a Person and the Company leases it from
that Person for a period, including renewals, in excess of 36
months.
"Security" has the meaning stated in the first recital
of this Indenture and more particularly means any Security
authenticated and delivered under this Indenture; provided,
however, that if at any time there is more than one Person acting
as Trustee under this Indenture, "Security" with respect to the
Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall
more particularly mean any Security authenticated and delivered
under this Indenture, exclusive, however, of Securities of any
series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305 hereof.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307 hereof.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security as the fixed
date on which the principal or installment of principal of such
Security or interest is due and payable.
"Stranded Cost Recovery Obligations" means, with respect to
any Person, such Person's obligations to make principal, interest
or other payments to the issuer of stranded cost recovery bonds
pursuant to a loan agreement or similar arrangement whereby the
issuer has loaned the proceeds of such bonds to such Person.
"Subsidiary" means a Person more than 50% of the
outstanding voting stock (or comparable equity interest) of which
is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock"
means stock of the class or classes having general voting power
under ordinary circumstances to elect at least a majority of the
board of directors of a corporation (irrespective of whether or
not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any
contingency).
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed, except as provided in Section 905 hereof.
"U.S. Government Obligations" means direct obligations
of the United States for the payment of which its full faith and
credit is pledged, or obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the
United States and the payment of which is unconditionally
guaranteed by the United States, and shall also include a
depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of a holder of
a depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such
depository receipt.
"Vice President", when used with respect to the Company
or the Trustee, means any vice president or assistant vice
president, whether or not designated by a number or a word or
words added before or after the title "vice president" or
"assistant vice president".
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture,
upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the
Company shall furnish to the Trustee (a) an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with and (b) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(iv) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Section 601 hereof) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, unless
otherwise established in or pursuant to a Board Resolution or set
forth or determined in an Officers' Certificate, or established
in one or more indentures supplemental hereto, pursuant to
Section 301 hereof, a Holder, including a Depositary that is a
Holder of a Global Security, may make, give or take, by a proxy,
or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders,
and a Depositary that is a Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of
interests in any such Global Security through such Depositary's
standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such
instrument, writing or proxy may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument,
writing or proxy acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument, writing or proxy, or the
authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) The Company may set any day as the record date for the
purpose of determining the Holders of Outstanding Securities of
any series entitled to make any request or demand, or give any
authorization, direction, notice, consent or waiver, or take any
other action, provided or permitted by this Indenture to be made,
given or taken by Holders of Securities of such series.
With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant
series on such record date (or their duly appointed agents), and
only such Persons, shall be entitled to take relevant action,
whether or not such Holders remain Holders after such record
date. With regard to any action that may be taken hereunder only
by Holders of a requisite principal amount of Outstanding
Securities of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the
Company may, at its option, set an expiration date after which no
such action purported to be taken by any Holder shall be
effective hereunder unless taken on or prior to such expiration
date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set
pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such expiration date to any later
date. Nothing in this paragraph shall prevent any Holder (or any
duly appointed agent thereof) from taking, at any time, any
action contrary to or different from, any action previously
taken, or purported to have been taken, hereunder by such Holder,
in which event the Company may set a record date in respect
thereof pursuant to this paragraph. Notwithstanding the foregoing
or the Trust Indenture Act, the Company shall not set a record
date for, and the provisions of this paragraph shall not apply
with respect to, any action to be taken by Holders pursuant to
Section 501, 502 or 512 hereof.
Upon receipt by a Responsible Officer of the Trustee of
actual notice of any default described in Section 501 hereof, any
declaration of acceleration, or any rescission and annulment of
any such declaration, pursuant to Section 502 hereof or of any
direction in accordance with Section 512 hereof, a record date
shall automatically and without any other action by any Person be
set for the purpose of determining the Holders of Outstanding
Securities of the series entitled to join in such notice,
declaration, or rescission and annulment, or direction, as the
case may be, which record date shall be the close of business on
the day the Trustee actually receives such notice, declaration,
rescission and annulment or direction, as the case may be. The
Holders of Outstanding Securities of such series on such record
date (or their duly appointed agent), and only such Persons,
shall be entitled to join in such notice, declaration, rescission
and annulment, or direction, as the case may be, whether or not
such Holders remain Holders after such record date; provided
that, unless such notice, declaration, rescission and annulment,
or direction, as the case may be, shall have become effective by
virtue of Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or
their duly appointed agents) having joined therein on or prior to
the 90th day after such record date, such notice of default,
declaration, or rescission and annulment or direction given or
made by the Holders, as the case may be, shall automatically and
without any action by any Person be canceled and of no further
effect. Nothing in this paragraph shall prevent a Holder (or a
duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a notice of default, a
declaration of acceleration, a rescission and annulment of a
declaration of acceleration or a direction in accordance with
Section 512 hereof, contrary to or different from, or, after the
expiration of such period, identical to, a previously given
notice, declaration, rescission and annulment, or direction, as
the case may be, that has been canceled pursuant to the proviso
to the preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this paragraph.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at
the address of its principal office specified in the first
paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made at
the direction of the Company in a manner reasonably calculated,
to the extent practicable under the circumstances, to provide
prompt notice and shall constitute a sufficient notification for
every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision
which is required or deemed to be included in this Indenture by
any of the provisions of the Trust Indenture Act, the provision
or requirement of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, such
provision of the Trust Indenture Act shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
Section 108. Effect of Headings, Table of Contents, Etc.
The Article and Section headings herein, the Table of
Contents and the Reconciliation and tie between the Trust
Indenture Act of 1939 and this Indenture are for convenience only
and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
Except as otherwise specified as contemplated by Section 301
hereof for Securities of any series, in any case where any
Interest Payment Date, Redemption Date, Stated Maturity or date
of repayment at the option of a Holder of any Security shall not
be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Securities)
payment of interest, if any, or principal (and premium, if any)
need not be made on such date at such Place of Payment, but may
be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, at the Stated Maturity or on the
date of repayment, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption
Date, Stated Maturity or date of repayment, as the case may be.
Section 114. No Recourse Against Others.
No recourse for the payment of the principal of or any
premium or interest on any Security or for any claim based
thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company,
contained in this Indenture or in any supplemental indenture, or
in any Security, or because of the creation of any Indebtedness
represented thereby, shall be had against any trustee,
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor corporation,
either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture
and the issuance of the Securities.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
as may, consistently herewith, be determined by the officer or
officers executing such Securities, as evidenced by the officer's
or officers' execution of the Securities. If the form of
Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer of the
Company, and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 hereof for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officer or officers
executing such Securities, as evidenced by the officer's or
officers' execution of such Securities.
Section 202. Form of Face of Security.
[If the Security is to be a Global Security, insert - This
Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is
exchangeable for Securities registered in the name of a Person
other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by
the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Global Security is presented by an authorized
representative of [The Depository Trust Company, a New York
corporation ("DTC")], to the Company or its agent for
registration of transfer, exchange or payment, and any definitive
Security is issued in the name of [Cede & Co.] or in such other
name as is requested by an authorized representative of DTC (and
any payment is made to [Cede & Co.] or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL in as much as the registered owner hereof,
[Cede & Co.], has an interest herein.]
WESTERN MASSACHUSETTS ELECTRIC COMPANY
[Title of the Security]
CUSIP No. ___________ $___________
No. ______________
WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation duly
organized and existing under the laws of the Commonwealth of
Massachusetts (the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
___________________________________, or registered assigns, the
principal sum of ________________________ Dollars on
_________________________________ [If the Security is to bear
interest prior to Maturity, insert - , and to pay interest
thereon from ________, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-
annually on [____________ and ___________] in each year,
commencing ________, at the rate per annum provided in the title
hereof, until the principal hereof is paid or made available for
payment [If applicable, insert - , and, subject to the terms of
the Indenture, at the rate per annum provided in the title hereof
on any overdue principal and premium and (to the extent that the
payment of such interest shall be legally enforceable) on any
overdue installment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person
in whose name this Security is registered at the close of
business on the Regular Record Date for such interest which shall
be (1) the Business Day next preceding such Interest Payment Date
if the Security remains in book-entry only form or (2) the 15th
calendar day (whether or not a Business Day) next preceding such
Interest Payment Date if the Security does not remain in book-
entry only form. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the
Holder on such date and may either be paid to the Person in whose
name this Security is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders
of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity,
insert-The principal of this Security shall not bear interest
except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such
case the overdue principal of this Security shall bear interest
at the rate of [yield to maturity]% per annum (to the extent that
the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date
payment of such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of [yield to maturity]%
per annum (to the extent that the payment of such interest shall
be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been
made or duly provided for, and such interest shall also be
payable on demand.]
Payment of the principal of (and premium, if any) and
interest[, if any,] on this Security will be made at the office
or agency of the Company maintained for that purpose in ________,
in [such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and
private debts - or state other currency] [If this Security is not
a Global Security, insert - ; provided, however, that at the
option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register] [If this Security
is a Global Security, insert applicable manner of payment].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, WESTERN MASSACHUSETTS ELECTRIC COMPANY
has caused this instrument to be duly executed.
Dated:
WESTERN MASSACHUSETTS ELECTRIC
COMPANY
By
[Name]
[Title]
[If more than one By
officer is to sign - [Name]
[Title]
Section 203. Form of Reverse of Security.
WESTERN MASSACHUSETTS ELECTRIC COMPANY
[Title of the Security]
This Security is one of a duly authorized issue of
securities of the Company (the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of
__________ __, 2003, as amended and supplemented from time to
time (the "Indenture"), between the Company and The Bank of New
York, a New York banking corporation, as Trustee (the "Trustee",
which term includes any successor trustee under the Indenture),
as to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders and of the terms upon
which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the
face hereof, limited in aggregate principal amount to $________.
The provisions of this Security, together with the provisions of
the Indenture, shall govern the rights, obligations, duties and
immunities of the Holder, the Company and the Trustee with
respect to this Security, provided that, if any provision of this
Security conflicts with any provision of the Indenture, the
provision of this Security shall be controlling to the fullest
extent permitted under the Indenture.
[If applicable, insert - This Security is not subject to
redemption prior to maturity.] [If applicable, insert - The
Securities of this series are subject to redemption upon not less
than 30 or more than 60 days' notice by mail to the Holders of
such Securities at their addresses in the Security Register for
such series, [if applicable, insert - (1) on __________ in any
year commencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)]
at any time [on or after ___________, [200_], as a whole or in
part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
If redeemed [on or before _____________, ___%, and if
redeemed] during the 12-month period beginning ___________, of
the years indicated:
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to ___% of the
principal amount, together in the case of any such redemption [if
applicable, insert - (whether through operation of the sinking
fund or otherwise)] with accrued and unpaid interest to the
Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the
Company may not, prior to _________, redeem any Securities of
this series as contemplated by [Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less
than ___% per annum.]
[The sinking fund for this series provides for the
redemption on _________ in each year beginning with the year ____
and ending with the year ____ of [not less than] __________
[("mandatory sinking fund") and, at the option of the Company,
not more than __________] aggregate principal amount of
Securities of this series. [Securities of this series acquired or
redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made
in the order in which they become due.]]
[If notice has been given as provided in the Indenture and
funds for the redemption of any Securities (or any portion
thereof) called for redemption shall have been made available on
the Redemption Date referred to in such notice, such Securities
(or any portion thereof) will cease to bear interest on the date
fixed for such redemption specified in such notice and the only
right of the Holders of such Securities will be to receive
payment of the Redemption Price and accrued interest, if any, to
the Redemption Date.]
[In the event of redemption of this Security in part only, a
new Security or Securities of this series and of like tenor for
the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security,
insert - If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,
insert - If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of principal
of the Securities of this series (the "Acceleration Amount") may
be declared due and payable in the manner and with the effect
provided in the Indenture. In case of a declaration of
acceleration on or before ________, __ or on _____________ in any
year, the Acceleration Amount per ______ principal amount at
Stated Maturity of the Securities shall be equal to the amount
set forth in respect of such date below:
Date of Declaration Acceleration Amount per
__________ principal amount
at Stated Maturity
and in case of a declaration of acceleration on any other date,
the Acceleration Amount shall be equal to the Acceleration Amount
as of the next preceding date set forth in the table above, plus
accrued original issue discount (computed in accordance with the
method used for calculating the amount of original issue discount
that accrues for Federal income tax purposes) from such next
preceding date to the date of declaration at the yield to
maturity. For the purpose of this computation the yield to
maturity is ___%. Upon payment (i) of the Acceleration Amount so
declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all
of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected
(voting as a class). The Indenture also contains provisions
permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding,
on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest, if
any, on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
[If this Security is a Global Security, insert - This
Security shall be exchangeable for Securities registered in the
names of Persons other than the Depositary with respect to such
series or its nominee only as provided in this paragraph. This
Security shall be so exchangeable if (x) the Depositary notifies
the Company that it is unwilling or unable to continue as
Depositary for such series or at any time ceases to be a clearing
agency registered as such under the Exchange Act, (y) the Company
executes and delivers to the Trustee an Officers' Certificate
providing that this Security shall be so exchangeable or (z)
there shall have occurred and be continuing an Event of Default
with respect to the Securities of the series of which this
Security is a part. Securities so issued in exchange for this
Security shall be of the same series, having the same interest
rate, if any, and maturity and having the same terms as this
Security, in authorized denominations and in the aggregate having
the same principal amount as this Security and registered in such
names as the Depositary for such Global Security shall direct.]
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of [If this Security
is a Global Security, insert - a Security of the series of which
this Security is a part] [If this Security is not a Global
Security, insert - this Security] is registrable in the Security
Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest, if
any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of [If this Security is a Global Security
insert - the series of which this Security is a part] [If this
Security is not a Global Security, insert - this series] are
issuable only in registered form without coupons in denominations
of $__________ and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of
like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
[For so long as this Security is issued in the form of a
Global Security, neither the Company nor the Trustee will have
any responsibility with respect to the policies and procedures of
the Depositary or for any notices or other communications among
the Depositary, its direct and indirect participants or the
beneficial owners of this Security.]
[If at any time this Security is not represented by a Global
Security, any notice to be given to the Holder of this Security
shall be deemed to have been duly given to such Holder upon the
mailing of such notice to the Holder at such Holder's address as
it appears on the Security Register maintained by the Company or
its agent as of the close of business preceding the day such
notice is given.]
Neither the failure to give any notice nor any defect in any
notice given to the Holder of this Security or any other Security
of this series will affect the sufficiency of any notice given to
any other Holder of any Securities of this series.
The Indenture provides that the Company, at its option (a)
will be discharged from any and all obligations in respect of the
Securities (except for certain obligations to register the
transfer or exchange of Securities, replace stolen, lost or
mutilated Securities, maintain paying agencies and hold moneys
for payment in trust) or (b) need not comply with certain
restrictive covenants of the Indenture, in each case if the
Company deposits, in trust, with the Trustee money or U.S.
Government Obligations which, through the payment of interest
thereon and principal thereof in accordance with their terms,
will provide money, in an amount sufficient to pay all the
principal of, and premium, if any, and interest, if any, on the
Securities on the dates such payments are due in accordance with
the terms of such Securities, and certain other conditions are
satisfied.
No recourse shall be had for the payment of the principal of
or the interest on this Security, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any
trustee, incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or any successor
corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings ascribed to them in the
Indenture.
Section 204. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication shall be in the
following form:
This is one of the Securities of the series designated
herein and referred to in the within-mentioned Indenture.
Dated: The Bank of New York, as Trustee
By
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
All Securities of each series under this Indenture shall in all
respects be equally and ratably entitled to the benefits hereof
with respect to such series without preference, priority or
distinction on account of the actual time of the authentication
and delivery or Stated Maturity of the Securities of such series.
The Securities may be issued in one or more series. Each
series of Securities shall be created either by or pursuant to a
Board Resolution or by or pursuant to an indenture supplemental
hereto. The Securities of each such series may bear such date or
dates, be payable at such place or places, have such Stated
Maturity or Maturities, bear interest at such rate or rates
(which may be fixed or floating), from such date or dates,
payable in such installments and on such dates and at such place
or places to the Holders of Securities registered as such on the
related Regular Record Dates, or may bear no interest, and may be
redeemable or repayable at such Redemption Price or Prices or
Repayment Price or Prices, as the case may be, whether at the
option of the Holder or otherwise, and upon such terms, all as
shall be provided for in or pursuant to the Board Resolution or
in or pursuant to the supplemental indenture creating that
series. There may also be established in or pursuant to a Board
Resolution and, subject to Section 303, set forth, or determined
in the manner provided, in an Officers' Certificate, or pursuant
to a supplemental indenture, prior to the issuance of Securities
of each such series, provision for:
(1) the title of the Securities of the series (including
CUSIP numbers) (which shall distinguish the Securities of the
series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306, 906, or 1107 hereof
and except for any Securities which, pursuant to Section 303
hereof, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose
name the Security (or one or more Predecessor Securities) is
registered at the close of business on the regular Record Date
for such interest;
(4) the date or dates on which the principal of the
Securities of the series is payable or any formulary or other
method or other means by which such date or dates shall be
determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise (without
regard to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(5) the rate or rates at which the Securities of the
series shall bear interest, if any (including the rate or
rates at which overdue principal shall bear interest, if
different from the rate or rates at which such Securities
shall bear interest prior to Maturity, and, if applicable,
the rate or rates at which overdue premium or interest shall
bear interest, if any), or any formulary or other method or
other means by which such rate or rates shall be determined,
by reference to an index or other fact or event ascertainable
outside of this Indenture or otherwise, the date or dates from
which such interest shall accrue or any formulary or other
method or other means by which such date or dates shall be
determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise (without
regard to any provisions for redemption, prepayment,
acceleration, purchase or extension), the Interest Payment
Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Interest Payment
Date;
(6) the place or places, if any, in addition to or in
place of the office or agency of the Company in the City of
West Springfield, Commonwealth of Massachusetts or the
principal office or place of business of the Trustee or its
successors in trust under the Indenture, which, at the date
hereof, is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Corporate Trust Administration, where the principal
of (and premium, if any) and interest, if any, on Securities
of the series shall be payable, where such Securities may be
registered, exchanged or transferred and where notices and
demands to or upon the Company in respect of the Securities of
such series and this Indenture may be served;
(7) the period or periods within which, the date or
dates on which, the price or prices at which and the terms and
conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any
sinking fund or other mandatory redemption provisions or at
the option of a Holder thereof, and the period or periods
within which, the date or dates on which, the price or prices
at which and the terms and conditions upon which Securities of
the series shall be redeemed, repaid or purchased, in whole or
in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 502 hereof;
(11) if other than such coin or currency of the United
States of America as at the time of payment is legal tender
for payment of public or private debts, the coin or currency,
including composite currencies, in which payment of the
principal of (and premium, if any) and interest, if any, on
the Securities of the series shall be payable;
(12) if the principal of (and premium, if any) or
interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof,
in a coin or currency other than that in which the Securities
are stated to be payable, the period or periods within which,
and the terms and conditions upon which, such election may be
made;
(13) if the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of
the series may be determined with reference to an index based
on a coin or currency other than that in which the
Securities are stated to be payable, the manner in which such
amounts shall be determined;
(14) any provisions permitted by this Indenture relating to
Events of Default or covenants of the Company with respect to
such series of Securities in addition to those specified in
Articles V and X hereof;
(15) the application or non-application of the provisions
contained in Sections 1007 and 1012 hereof;
(16) if the Securities of such series are to be issued
in global form, (i) any limitations on the rights of the
Holder or Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer thereof,
(ii) any limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in definitive form in
lieu of temporary form and (iii) any and all other matters
incidental to such Securities;
(17) the obligations or instruments, if any, which shall
be considered to be U.S. Government Obligations in respect of
the Securities of such series denominated in a currency other
than U.S. dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement of
the Company's indebtedness in respect of such Securities after
the satisfaction and discharge thereof; and
(18) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture),
including, without limitation, any terms required for or
appropriate to (i) establishing one or more series of
medium-term notes to be issued in a Periodic Offering or
(ii) providing for the remarketing of the Securities of such
series.
All Securities of any one series (other than Securities
offered in a Periodic Offering) shall be substantially identical
except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and set
forth in the Officers' Certificate referred to above or in any
such indenture supplemental hereto.
If any of the terms of the series, including the form of
Security of such series, are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant
Secretary or other authorized officer of the Company, and
delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 hereof for the
authentication and delivery of such series of Securities.
With respect to Securities of a series offered in a Periodic
Offering, such Board Resolution and Officers' Certificate or
supplemental indenture may provide general terms or parameters
for Securities of such series and provide either that the
specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with other
procedures specified in a Company Order as contemplated by the
third paragraph of Section 303.
Section 302. Denominations.
The Securities of each series shall be issuable in
registered form without coupons, except as otherwise expressly
provided in a supplemental indenture hereto, in such
denominations as shall be specified as contemplated by Section
301 hereof. In the absence of any such provisions with respect to
the Securities of any series, the Securities of such series shall
be issuable in denominations of $1,000 and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chief Executive Officer, President, Vice President, General
Manager or Treasurer, and may have the corporate seal of the
Company affixed thereto or reproduced thereon and which seal, if
so affixed or reproduced, may, but need not, be attested. The
Securities of any series shall be executed by such additional
officer, if any, as shall be specified pursuant to Section 301
hereof. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signature of any
individual who was at any time the proper officer of the Company
shall bind the Company, notwithstanding that such individual has
ceased to hold such office prior to the authentication and
delivery of such Securities or did not hold such office at the
date of authentication of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, or, in the case of Securities offered in a
Periodic Offering, from time to time in accordance with such
other procedures (including, without limitation, the receipt by
the Trustee of electronic instructions from the Company or its
duly authorized agents, promptly confirmed in writing by the
Company) acceptable to the Trustee as may be specified from time
to time by a Company Order for the specific terms of the
Securities being so offered, together with (i) a Company Order
for the authentication and delivery of such Securities, (ii) an
Officers' Certificate stating that (x) the Company is not, and
upon the authentication by the Trustee of the series of
Securities, will not be in default under any of the terms or
covenants contained in the Indenture, and (y) all conditions that
must be met by the Company to issue Securities under the
Indenture have been met, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Securities. If
the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301 hereof, in authenticating such
Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall
be entitled to receive, and (subject to Section 601 hereof) shall
be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201
hereof, that such form has been established in conformity with
the provisions of this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301
hereof, that such terms have been established in conformity
with the provisions of this Indenture;
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or transfer or other similar laws relating to or affecting the
rights of creditors generally and except as the enforceability
thereof is subject to the application of general principles of
equity (regardless of whether considered in a proceeding in
equity or at law), including, without limitation,(i) the
possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (ii) concepts
of materiality, reasonableness, good faith and fair dealing;
provided, however, that, with respect to Securities of a series offered
in a Periodic Offering, the Trustee shall be entitled to receive such
Opinion of Counsel in connection only with the first authentication of
Securities of such series, and in such case the opinions described in
Clauses (b) and (c) above may state, respectively, that:
(i) if the terms of such Securities are to be established
pursuant to a Company Order or pursuant to such procedures as may
be specified from time to time by a Company Order, all as
contemplated by a Board Resolution or action taken pursuant
thereto, such terms will have been duly authorized by the Company
and established in conformity with the provisions of this
Indenture; and
(ii) that such Securities, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture, and
issued and delivered by the Company and paid for, all in
accordance with any agreement of the Company relating to the
offering, issuance and sale of such Securities, will be duly
issued under this Indenture and will constitute the legal, valid
and binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting generally the enforcement of creditors'
rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities and any coupons.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties, protections or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 hereof and of
the preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to
deliver the Board Resolution, the Officers' Certificate, or an
indenture supplemental hereto otherwise required pursuant to
Section 301 hereof or the Company Order, the Officers'
Certificate and the Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents
are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be
issued. If all of the Securities of a series are not
authenticated and issued at one time, for each issuance of
Securities after the initial issuance of Securities, the Company
shall be required only to deliver to the Trustee the Security
executed by the Company together with a Company Order to the
Trustee to authenticate such Security and to deliver such
Security in accordance with the instructions specified by such
Company Order. Any such Company Order shall constitute a
representation and warranty by the Company that the statements
made in the Officers' Certificate delivered to the Trustee prior
to the authentication and issuance of the first Security of such
series are true and correct on the date thereof as if made on and
as of the date thereof.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309 hereof
together with a written statement (which need not comply with
Section 102 hereof and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits
of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officer or officers
executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series
and of like tenor of authorized denominations. Until so exchanged
the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to
as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security
of any series at the office or agency in a Place of Payment for
that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, any Security or Securities of
any series, other than a Global Security, may be exchanged for
other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of transfer
or exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made to the Holder for any
registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Sections 304, 906 or 1107 hereof
not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities of that
series selected for redemption under Section 1103 hereof and
ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
The provisions of this Section 305 are, with respect to any
Global Security, subject to Section 311 hereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a
protected purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of
the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section
306, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section 306 in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series
duly issued hereunder.
The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
first-class postage prepaid, Interest and the Special Record
Date therefor to be mailed, to each Holder of Securities of
such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307 and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of a Security as the owner of
such Security for the purpose of receiving payment of principal
of (and premium, if any) and (subject to Section 305 and Section
307 hereof) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary. All such
payments so made to any such Holder, or upon such Holder's order,
shall be valid, and, to the extent of the sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon
any such Security.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary shall have any rights under
this Indenture with respect to such Global Security, and such
Depositary may be treated by the Company, the Trustee, and any
agent of the Corporation or the Trustee as the owner of such
Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depositary
and such holders of beneficial interests, the operation of
customary practices governing the exercise of the rights of the
Depositary as holder of any Security.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section 309, except
as expressly permitted by this Indenture. All canceled Securities
held by the Trustee shall be disposed of in accordance with the
Trustee's then customary practice for disposing of securities,
unless otherwise directed by a Company Order; provided, however,
that the Trustee shall not be required to destroy any canceled
Securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
hereof for Securities of any series, interest, if any, on the
Securities of each series shall be computed on the basis of a 360-
day year of twelve 30-day months and for any period shorter than
a full month, on the basis of the actual number of days elapsed
in such period.
Section 311. Global Securities.
If the Company establishes pursuant to Section 301 hereof
that the Securities of a particular series are to be issued in
the form of a Global Security, then the Company shall execute and
the Trustee shall, in accordance with Section 303 hereof,
authenticate and deliver, a Global Security or Securities which
(i) shall represent, and shall be denominated in an aggregate
amount equal to the aggregate principal amount of, all of the
Outstanding Securities of such series, (ii) shall be registered
in the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend
substantially to the following effect:
"This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is
registered in the name of a Depositary or a nominee of
a Depositary. This Security is exchangeable for
Securities registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no
transfer of this Security (other than a transfer of
this Security as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary)
may be registered except in limited circumstances.
Unless this Global Security is presented by an
authorized representative of the Depositary to the
Company or its agent for registration of transfer,
exchange or payment, and any definitive Security is
issued in the name of [Cede & Co.] or in such other
name as is requested by an authorized representative of
the Depositary (and any payment is made to [Cede & Co.]
or to such other entity as is requested by an
authorized representative of the Depositary), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as
the registered owner hereof, [Cede & Co.], has an
interest herein."
Notwithstanding the provisions of Section 305 hereof, the
Global Security of a series may be transferred, in whole but not
in part and in the manner provided in Section 305 hereof, only to
another nominee of the Depositary for such series, or to a
successor Depositary for such series selected or approved by the
Company or to a nominee of such successor Depositary.
If (i) at any time the Depositary for a series of Securities
notifies the Company that it is unwilling or unable to continue
as Depositary for such series or if at any time the Depositary
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 Depositary 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 or (ii)
there shall have occurred and be continuing after any applicable
grace periods an Event of Default with respect to the Securities
for a series, then in each such case, this Section 311 shall no
longer be applicable to the Securities of such series and the
Company will execute, and subject to Section 305 hereof, the
Trustee will authenticate and deliver Securities 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 Securities of such series in
exchange for such Global Securities. In addition, the Company may
at any time determine that the Securities of any series shall no
longer be represented by Global Securities and that the
provisions of this Section 311 shall no longer apply to the
Securities of such series. In such event the Company will execute
and subject to Section 305 hereof, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver Securities 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 Securities of such series in
exchange for such Global Securities. Upon the exchange of the
Global Securities for such Securities in definitive registered
form without coupons, in authorized denominations, the Global
Securities shall be canceled by the Trustee. Such Securities in
definitive registered form issued in exchange for the Global
Securities pursuant to this Section 311, shall be registered in
such names and in such authorized denominations as the
Depositary, pursuant to the instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver Securities to the Depositary for
delivery to the persons in whose names such Securities are so
registered.
Section 312. Periodic Offering of Securities.
Notwithstanding any contrary provision herein, if all
Securities of a series are not to be originally issued at one
time, it shall not be necessary for the Company to deliver to the
Trustee an Officers' Certificate, Board Resolution, supplemental
indenture, Opinion of Counsel or Company Request otherwise
required pursuant to Sections 202, 301 and 303 at or prior to the
time of authentication of each Security of such series if such
documents are delivered to the Trustee or its agent at or prior
to the authentication upon original issuance of the first
Security of such series to be issued; provided that any
subsequent request by the Company to the Trustee to authenticate
Securities of such series upon original issuance shall constitute
a representation and warranty by the Company and its counsel that
as of the date of such request, the statements made in the
Officers' Certificate and opinions made in the Opinion of Counsel
delivered pursuant to Section 102 and 303, respectively, shall be
true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide
that Securities which are the subject thereof will be
authenticated and delivered by the Trustee or its agent on
original issue from time to time upon the written order of a
person or persons designated in such Officers' Certificate,
supplemental indenture or Board Resolution (any such telephonic
instructions to be confirmed promptly in writing by such person
or persons) and that such person or persons are authorized to
determine, consistent with such Officers' Certificate,
supplemental indenture or Board Resolution, such terms and
conditions of said Securities as are specified in such Officers'
Certificate, supplemental indenture or Board Resolution.
SECTION 313. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee in
writing of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either (A) all Securities of all series theretofore
authenticated and delivered (other than (x) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 hereof and (y)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003 hereof) have been
delivered to the Trustee for cancellation; or
(B) all such Securities of all series not
theretofore delivered to the Trustee for cancellation
have become due and payable and the Company has
irrevocably deposited or caused to be irrevocably
deposited (in each case except as provided in Section
402(c) hereof and the last paragraph of Section 1003
hereof) with the Paying Agent or with the Trustee as
trust funds in trust for the purpose an amount of
money sufficient to pay and discharge, or has
otherwise paid, the entire Indebtedness on such
Securities for principal (and premium, if any) and
interest, if any;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been
complied with.
provided, however, that if the Trustee or any Paying Agent
is required to return any money deposited with it as described in
this Section 401 to the Company or its representative under any
applicable Federal or state bankruptcy, insolvency or similar
law, this Indenture shall retroactively be deemed not to have
been satisfied and discharged and automatically shall be
reinstated and shall remain in full force and effect without any
further action, but the Company shall execute and deliver such
instruments as the Trustee shall reasonably request to evidence
and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 607 hereof, the obligations of the Trustee to any
Authenticating Agent under Section 614 hereof and, if money shall
have been deposited with the Paying Agent or with the Trustee
pursuant to subclause (B) of clause (1) of this Section 401 the
obligations of the Trustee under Section 401, 402, 1002 and 1003
hereof shall survive such satisfaction and discharge.
Section 402. Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section
1003 hereof, all money or U.S. Government Obligations deposited
with the Trustee pursuant to Sections 401, 403 or 1009 hereof and
all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Sections 401,
403 or 1009 hereof, shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this
Indenture, to the payment, to the persons entitled thereto, of
the principal (and premium, if any) and interest, if any, for
whose payment such money has been deposited with or received by
the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Sections 401, 403 or 1009
hereof.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against U.S. Government Obligations deposited pursuant to
Sections 401, 403 or 1009 hereof or the interest and principal
received in respect of such obligations other than any payable by
or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any U.S. Government Obligations or
money held by it as provided in Sections 401, 403 or 1009 hereof
which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, are then in
excess of the amount thereof which then would have been required
to be deposited for the purpose for which such U.S. Government
Obligations or money was deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S.
Government Obligations held under this Indenture.
Section 403. Satisfaction, Discharge and Defeasance of
Securities of any Series.
The Company shall be deemed to have paid and Discharged the
entire Indebtedness on all the Outstanding Securities of any
series upon the deposit of the amount referred to in subparagraph
(1) hereof, and the provisions of this Indenture, as they relate
to such Outstanding Securities of such series, shall no longer be
in effect (and the Trustee, at the expense of the Company, shall
at Company Request execute proper instruments acknowledging the
same), except as to:
(a) the rights of Holders of Securities of such
series to receive, from the trust funds described in
subparagraph (1) hereof, (i) payment of the principal of
(and premium, if any) and each installment of principal
of (and premium, if any) or interest, if any, on the
Outstanding Securities of such series on the Stated
Maturity of such principal or installment of principal
or interest or to and including the Redemption Date
irrevocably designated by the Company pursuant to
subparagraph (4) hereof and (ii) the benefit of any
mandatory sinking fund payments applicable to the
Securities of such series on the day on which such
payments are due and payable in accordance with the
terms of this Indenture and the Securities of such
series;
(b) the Company's obligations with respect to such
Securities of such series under Sections 305, 306, 1002 and
1003 hereof and, if the Company shall have irrevocably
designated a Redemption Date pursuant to subparagraph (4)
hereof, Sections 1101, 1104 and 1106 hereof as they apply to
such Redemption Date;
(c) the Company's obligations with respect to the
Trustee under Section 607 hereof; and
(d) the rights, powers, trust and immunities of the
Trustee hereunder and the duties of the Trustee under Section
402 hereof and, if the Company shall have irrevocably
designated a Redemption Date pursuant to subparagraph (4)
hereof, Article Eleven and the duty of the Trustee to
authenticate Securities of such series on registration of
transfer or exchange;
provided that, the following conditions shall have been satisfied:
(1) the Company has irrevocably deposited or caused to
be irrevocably deposited (in each case except as provided in
Section 402(c) hereof and the last paragraph of Section 1003
hereof) with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of such series, an amount of
(i) money or (ii) U.S. Government Obligations or a combination
of money or U.S. Government Obligations in each case
sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to
pay and discharge, and which the Trustee shall be instructed to
apply to pay and discharge, (x) the principal of (and premium,
if any) and each installment of principal (and premium, if any)
and interest, if any, on the Outstanding Securities of such
series on the Stated Maturity of such principal or premium or
installment of principal, premium or interest or (y) the
principal of (and premium, if any) and interest on the
Outstanding Securities to be redeemed on the Redemption Date
irrevocably designated by the Company pursuant to subparagraph
(4) hereof; provided, however, that (A) all money and U.S.
Government Obligations deposited pursuant to this Section
403 shall be denominated in U.S. Dollars; and (B) U.S.
Government Obligations shall be valued at the amount of money
that they will provide through the payment of principal and
interest in respect thereof in accordance with their terms no
later than one day prior to the Stated Maturity or Redemption
Date, as the case may be, and shall not contain provisions
permitting the redemption or other prepayment at the option of
the issuer thereof prior to the Stated Maturity or Redemption
Date, as the case may be;
(2) no Event of Default or event which with notice or
lapse of time would become an Event of Default (including by
reason of such deposit) with respect to the Securities of such
series shall have occurred and be continuing on the date of
such deposit or during the period ending on the 91st day
after such date;
(3) the Company has delivered to the Trustee an
unqualified opinion, in form and substance reasonably
acceptable to the Trustee, of independent counsel of national
standing selected by the Company and satisfactory to the
Trustee to the effect that (i) Holders of the Securities
will not recognize income, gain or loss for Federal income
tax purposes as a result of the deposit, defeasance and
discharge, which opinion shall be based on a change in
law or a ruling by the U.S. Internal Revenue Service
after the date hereof and (ii) the defeasance trust is not, or
is registered as, an investment company under the Investment
Company Act of 1940;
(4) if the Company has deposited or caused to be
deposited money or U.S. Government Obligations to pay or
discharge the principal of (and premium, if any) and interest,
if any, on the Outstanding Securities of a series to and
including a Redemption Date on which all of the Outstanding
Securities of such series are to be redeemed, such Redemption
Date shall be irrevocably designated by a Board
Resolution delivered to the Trustee on or prior to the
date of deposit of such money or U.S. Government Obligations,
and such Board Resolution shall be accompanied by an
irrevocable Company Request that the Trustee give notice of
such redemption in the name and at the expense of the Company
not less than 30 nor more than 60 days prior to such Redemption
Date in accordance with Section 1104 hereof; and
(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating
to the satisfaction and discharge of the Securities have been
complied with.
The condition set forth in clause (i) of subparagraph (3)
hereof shall not apply if (A) the Company shall have irrevocably
designated a Redemption Date pursuant to subparagraph (4) hereof,
such Redemption Date is no more than 60 days after the date of
the deposit referred to in subparagraph (1) hereof and the
Company has complied with the remaining conditions of
subparagraphs (1) through (5) hereof, or (B) the Company has
complied with the remaining conditions of subparagraphs (1)
through (5) hereof as of a date which is no less than sixty (60)
days prior to the maturity date.
Anything herein to the contrary notwithstanding, (a) if the
Trustee or any Paying Agent is required to return any money or
U.S. Government Obligations deposited with it pursuant to this
Section 403 to the Company or its representative under any
Federal or state bankruptcy, insolvency or similar law, such
Security shall thereupon be deemed retroactively not to have been
paid and any satisfaction and discharge of the Company's
Indebtedness in respect thereof shall retroactively be deemed not
to have been effected, and such Security shall be deemed to
remain Outstanding and the provisions of the Indenture relating
to such Security shall be reinstated and shall remain in full
force and effect and (b) any satisfaction and discharge of the
Company's Indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of Section 1003.
ARTICLE FIVE
EVENTS OF DEFAULT; REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body) unless such event is either inapplicable to a
particular series (to the extent expressly provided in the form
of Security for such series) or it is specifically deleted or
modified in the supplemental indenture creating such series of
Securities or in the form of Security for such series:
(a) failure to pay interest upon any Security of that
series when it becomes due and payable, and continuance of
such failure for a period of 30 days; or
(b) failure to pay the principal of (or premium, if
any, on) any Security of that series at its Maturity, and
continuance of such failure for a period of three days; or
(c) failure to pay any sinking fund installment, when
and as due by the terms of a Security of that series, and
continuance of such failure for a period of three days; or
(d) default in the performance, or breach, of any
covenant or warranty or obligation of the Company in this
Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this
Section 501 specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of any
series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 33% in aggregate
principal amount of the Outstanding Securities of that series
a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(e) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed
a petition by one or more Persons other than the Company
seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period
of 90 consecutive days; or
(f) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency
or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of
any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the taking of
corporate action by the Company in furtherance of any such
action; or
(g) any other Event of Default provided in the
supplemental indenture or provided in or pursuant to the Board
Resolution under which such series of Securities is issued or
in the form of Security for such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding described in paragraph (a), (b),
(c), (d) or (g) of Section 501 hereof occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 33% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or,
if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of all of
the Securities of that series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and
payable upon the date which is 10 days after the date of such
notice.
If an Event of Default described in paragraph (e) or (f) of
Section 501 hereof occurs and is continuing, then and in every
such case, the principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the
Securities shall, without any notice to the Company or any other
act on the part of the Trustee or any Holder of the Securities,
become and be immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest, if any, on all Securities
of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon any overdue interest at the rate
or rates prescribed herefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of
and accrued interest on Securities of that series which have
become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513 hereof.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have
been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal
amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full
of such Original Issue Discount Securities.
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if (a) default is made in the
payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period
of 30 days, or (b) default is made in the payment of the
principal of (or premium, if any, on) any Security at the
Maturity thereof, then the Company will, upon written demand of
the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, if
any, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the
Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If any Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights.
Except as may otherwise be provided in a supplemental
indenture or Board Resolution in or pursuant to which the terms
of the related Securities shall have been established pursuant to
Section 301 of this Indenture, the Trustee shall not be required
to take notice or be deemed to have notice of any default or
Event of Default other than pursuant to paragraphs (a), (b) or
(c) of Section 501 of this Indenture, unless a Responsible
Officer of the Trustee shall be specifically notified in writing
at the Corporate Trust Office of such default by the Company, or
by the Holders of a majority in aggregate principal amount of
Outstanding Securities, and such notice references the Securities
or this Indenture.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and any
other amounts due the Trustee under Section 607 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order with respect to the
Securities of any series, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation
of the Securities in respect of which or for the benefit of which
such money shall have been collected and the notation thereon of
the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607 hereof;
SECOND: In case the principal and premium, if any, of
the Securities of such series in respect of which moneys have
been collected shall not have become and be then due and
payable, to the payment of interest, if any, on the Securities
of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee and to
the extent permitted by law) upon the overdue installments
of interest at the rate prescribed therefor in such
Securities, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal or premium, if any, of
the Securities of such series in respect of which moneys have
been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal
and premium, if any, and interest, if any, with interest upon
the overdue principal and premium, if any, and (to the extent
that such interest has been collected by the Trustee and to
the extent permitted by law) upon overdue installments of
interest at the rate prescribed therefor in the Securities
of such series; and in case such moneys shall be insufficient
to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such
principal and any premium and interest, without preference
or priority of principal over interest, or of interest
over principal or premium, or of any installment of interest
over any other installment of interest, or of any Security
of such series over any other Security of such series, ratably
to the aggregate of such principal and any premium and accrued
and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company or as a court of competent jurisdiction may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to a
Responsible Officer of the Trustee of a continuing Event of
Default with respect to the Securities of that series;
(2) the Holders of not less than 33% in principal amount
of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatsoever by virtue
of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 307 hereof) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption or
repayment at the option of the Holder, on the Redemption Date or
the Repayment Date, respectively) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 306 hereof, no right or remedy
herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority
in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series, provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and provided
that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction,
and
(3) the Trustee shall not determine that the action so
directed would subject the Trustee to personal liability or
expense for which reasonable indemnity has not been provided.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series
waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken 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 and expenses, 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 514 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if
any) or interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the
case of redemption or repayment at the option of the Holder, on
or after the Redemption Date or the Repayment Dates,
respectively).
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of a default with respect to
the Securities of any series,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of any mathematical calculations
or other facts stated therein).
(b) In case a default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except
that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section 601;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
determined as provided in Section 512 hereof, relating to the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 601. The permissive
right of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty and it shall not be answerable
for other than its own negligent action, its own negligent
failure to act or its own willful misconduct.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice
of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Security of
such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest
of the Holders of Securities of such series; and provided,
further, that in the case of any default of the character
specified in Section 501(d) hereof with respect to Securities of
such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of
this Section 602, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 hereof:
(a) the Trustee may conclusively rely and shall be fully
protected in acting in good faith or refraining from acting in
good faith upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Indebtedness or
other paper or document (whether in original or facsimile form)
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order or as otherwise expressly provided herein and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
deems it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely
upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to expend or risk
its own funds or to exercise, at the request or direction of any
of the Holders, any of the rights or powers vested in it by this
Indenture pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity
satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of Indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled upon reasonable request to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder.
(i) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture;
(j) in no event shall the Trustee be responsible or liable
for special, indirect, or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action; and
(k) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof. The Trustee shall not be
responsible for doing or performing any thing or act which the
Company shall have covenanted to do or perform, or for any
compliance with any covenant by the Company, nor, except as may
be otherwise required by the Trust Indenture Act, shall the
Trustee be bound to ascertain or inquire as to the performance of
any covenant, condition or agreement by the Company, but it may
require full information and advice in regard to any of the
foregoing.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 608 and 613 hereof, may
otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation as is agreed upon in writing, or, if no such
agreement exists, reasonable compensation for all services
rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel, which compensation,
expenses and disbursements shall be set forth in sufficient
detail), except any such expense, disbursement or advance as
shall be determined to have been caused by its own negligence
or willful misconduct; and
(3) to fully indemnify the Trustee for, and to hold it
harmless against, any loss, liability, claim, damage or
expense incurred without negligence or willful misconduct on
its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section 607, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any) or interest on
Securities.
"Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the negligence,
willful misconduct or bad faith of any Trustee hereunder shall
not affect the rights of any other Trustee hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(e)
or Section 501(f), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law. The provisions of this Section 607 shall
survive the termination for any reason of this Indenture and
resignation or removal of the Trustee.
Section 608. Conflicting Interests.
The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act during the period of time provided for
therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be
excluded for purposes of the conflicting interest provisions of
such Section 310(b) the Securities of every other series issued
under this Indenture. Nothing herein shall prevent the Trustee
from filing with the Commission the application referred to in
the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be eligible to act as trustee under the Trust Indenture Act and
which shall have a combined capital and surplus of at least
$50,000,000. If the Trustee does not have an office in The City
of New York, the Trustee may appoint an agent in The City of New
York reasonably acceptable to the Company to conduct any
activities which the Trustee may be required under this Indenture
to conduct in The City of New York. If the Trustee does not have
an office in The City of New York or has not appointed an agent
in The City of New York, the Trustee shall be a participant in
The Depository Trust Company and FAST distribution systems or
their successors. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of a Federal, State, or District of Columbia
supervising or examining authority, then for the purposes of this
Section 609, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 609, the Trustee shall resign
immediately in the manner and with the effect hereinafter
specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor
Trustee.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section
611 hereof.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 hereof shall not have been
delivered to the Trustee within 60 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the
expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. . If the instrument
of acceptance by a successor Trustee required by Section 611
hereof shall not have been delivered to the Trustee within 60
days after the giving of such notice of resignation, the
resigning Trustee may petition at the expense of the Company any
court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b)
of the Trust Indenture Act pursuant to Section 608 hereof with
respect to any series of Securities after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
609 hereof and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii)
subject to Section 514 hereof, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611 hereof. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611 hereof, become
the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by
the Company or the Holders and accepted appointment in the manner
required by Section 611 hereof, any Holder who has been a bona
fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its liens
provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or
any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates, subject nevertheless to its liens
provided for in Section 607.
(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 611, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section 613, if the
Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within three
months prior to a default, as defined in Subsection (c) of this
Section 613, or subsequent to such a default, then, unless and
until such default shall be cured, the Trustee shall set apart
and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the holders of
other indenture securities, as defined in Subsection (c) of this
Section 613:
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the beginning
of such three-month period and valid as against the Company
and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any
right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the
Company upon the date of such default; and
(2) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three-month period, or an amount equal
to the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made
on account of any such claim by any Person (other than
the Company) who is liable thereon, and (ii) the proceeds
of the bona fide sale of any such claim by the Trustee to
a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such
property was so held prior to the beginning of such
three-month period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim,
if such claim was created after the beginning of such
three-month period and such property was received as
security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden
the Trustee had no reasonable cause to believe
that a default, as defined in Subsection (c) of
this Section 613, would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any
property held as security for such claim as provided in
paragraph (B) or (C), as the case may be, to the extent
of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for
property held as security at the time of such substitution shall,
to the extent of the fair value of the property released, have
the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying
or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such pre-
existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof
shall be apportioned among the Trustee, the Holders and the
holders of other indenture securities in such manner that the
Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting
to the respective claims of the Trustee and the Holders and the
holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy
Act or applicable State law, but after crediting thereon receipts
on account of the Indebtedness represented by their respective
claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used
in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash,
securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders and the holders
of other indenture securities, in accordance with the provisions
of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and
the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the
provisions of this Subsection (a) as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this Subsection (a) if and
only if the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the
beginning of such three-month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) there shall be excluded from the operation of Subsection (a)
of this Section 613 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax
liens or other prior liens or encumbrances thereon, if notice
of such advances and of the circumstances surrounding the
making thereof is given to the Holders at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depository, or other similar capacity;
(4) an Indebtedness created as a result of services
rendered or premises rented; or an Indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this Section 613;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations
which fall within the classification of self-liquidating
paper, as defined in Subsection (c) of this Section 613.
(c) For the purposes of this Section 613 only:
(1) the term "default" means any failure to make payment
in full of the principal of or interest on any of the
Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor (as defined
in the Trust Indenture Act) outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii)
which contains provisions substantially similar to the
provisions of this Section 613, and (iii) under which a
default exists at the time of the apportionment of the funds
and property held in such special account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft,
xxxx of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or
obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the
Bankruptcy Code or Title 11 of the United States Code.
Section 614. Authenticating Agents.
From time to time the Trustee, in its sole discretion, may
appoint one or more Authenticating Agents with respect to one or
more series of Securities with power to act on the Trustee's
behalf and subject to its direction in the authentication and
delivery of Securities of such series or in connection with
transfers and exchanges under Sections 304, 305, 306, and 1107
hereof as fully to all intents and purposes as though the
Authenticating Agent had been expressly authorized by those
Sections of this Indenture to authenticate and deliver Securities
of such series. For all purposes of this Indenture, the
authentication and delivery of Securities by an Authenticating
Agent pursuant to this Section 614 shall be deemed to be
authentication and delivery of such Securities "by the Trustee".
Each such Authenticating Agent must (a) be reasonably acceptable
to the Company and (b) at all times be a corporation organized
and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws
to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or
examination by Federal, State or District of Columbia authority.
If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority,
then for the purposes of this Section 614 the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 614, such Authenticating
Agent shall resign immediately in the manner and with the effect
specified in this Section 614.
Any corporation into which any Authenticating Agent may be
merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation or to which any
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible
under this Section 614, without the execution or filing of any
paper or any further act on the part of the parties hereto or the
Authenticating Agent or such successor corporation.
An Authenticating Agent may resign at any time by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible
under this Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and
shall mail notice of such appointment to all Holders of
Securities of the series with respect to which such
Authenticating Agent will serve, as the names and addresses of
such Holders appear on the Security Register. Any successor
Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 614.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section 614.
If an appointment with respect to one or more series of
Securities is made pursuant to this Section 614, the Securities
of such series may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certificate
of authentication in the following form:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
Dated:
As Trustee
As Authenticating Agent
Administrative Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee with respect to the Securities of each series
(a) semi-annually, not later than 15 days after
each Regular Record Date, or, in the case of any series
of Securities on which semi-annual interest is not
payable, not more than 15 days after such semi-annual
dates as may be specified by the Trustee, a list, in such
form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record
Date or semi-annual date, as the case may be, 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, that if and so long as the Trustee is Security
Registrar for any series of Securities, no such list shall be required
to be furnished with respect to any such series.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in
Section 701 hereof and the names and addresses of Holders received by
the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701 hereof
upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date
of such application, and such application states that the
applicants desire to communicate with other Holders with respect
to their rights under this Indenture or under the Securities 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
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a) hereof, or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with
Section 702(a) hereof, and as to the approximate cost of
mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder whose name and
address appear in the information preserved at the time by the
Trustee in accordance with Section 702(a) hereof a copy of the
form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee
of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interest of the Holders or would be in
violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining
one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting
their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in
accordance with Section 702(b) hereof, regardless of the source
from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b) hereof.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of the
initial issuance of Securities under this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies
with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify
the Trustee in writing when the Securities are listed on any
stock exchange and of any delisting thereof.
Section 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) 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 said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Exchange
Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security 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 paragraphs (1) and (2) of this
Section 704 as may be required by rules and regulations
prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
other corporation or convey, sell or otherwise transfer its
properties and assets substantially as an entirety to any Person,
unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
sale or transfer the properties and assets of the Company
substantially as an entirety is a corporation organized and
existing under the laws of the United States of America, any
State thereof or the District of Columbia, and shall expressly
assume by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if
any) and interest, if any, on all the Securities and the
performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(b) immediately after giving effect to such transaction no Event
of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and
be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transactions have been complied with.
Section 802. Successor Corporation to be Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, sale or
transfer of the properties and assets of the Company
substantially as an entirety in accordance with Section 801
hereof, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance,
sale or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter
the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities;
(2) to add to the covenants of the Company, or to
surrender any right or power herein conferred upon the Company,
for the benefit of the Holders of all or any series of
Securities (and if such covenants, or the surrender of such
rights or powers, are to be for the benefit of less than all
series of Securities, stating that such covenants are
expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons, or to facilitate the issuance of
Securities in uncertificated form, or to permit or facilitate
the issuance of extendible or remarketed Securities;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only as to the Securities of any series
created by such supplemental indenture and Securities of any
series subsequently created to which such change or
elimination is made applicable by the subsequent supplemental
indenture creating such series;
(6) to secure all but not part of the Securities;
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301 hereof;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 611(b) hereof;
(9) to provide for any rights of the Holders of
Securities of any series to require the repurchase of
Securities of such series by the Company;
(10) to cure any ambiguity or defect, to correct or
supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions
with respect to matters or questions arising under this
Indenture or the Securities or make any other changes herein
or therein, provided such action shall not adversely affect
the interests of the Holders of Securities of any series in
any material respect;
(11) to modify, alter, amend or supplement this Indenture
in any other respect which is not materially adverse to
Holders, which does not involve a change described in clauses
(1), (2) or (3) of Section 902 hereof; or
(12) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on all
or any series of Securities shall be payable, (2) all or any
series of Securities may be surrendered for registration of
transfer, (3) all or any series of Securities may be
surrendered for exchange and (4) notices and demands to or
upon the Company in respect of all or any series of Securities
and this Indenture may be served.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and
delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or
more changes to any provisions hereof or the inclusion
herein of any additional provisions, or shall by
operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one or
more changes to, or the elimination of, any provisions
hereof which, at the date of the execution and delivery
hereof or at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended to
effect such changes or elimination, and the Company and
the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to evidence
such amendment hereof, provided such amendment does not
have a material adverse effect on any Holders.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
affected by such supplemental indenture (voting as one class), by
Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution,
and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest, if any, on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 502 hereof, or change any Place of Payment where,
or the coin or currency in which, any Security or any premium
or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or
after the Redemption Date or Repayment Date, respectively),
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences, or the
declaration of certain defaults hereunder, provided for in
this Indenture, or
(3) modify any of the provisions of this Section 902
or Section 513 hereof, except to increase any such percentage
that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902, or the
deletion of this proviso, in accordance with the requirements
of Sections 611(b) and 901(8) hereof.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary under this Section 902 that the
particular form of any proposed supplemental indenture be
approved by an Act, provided that the substance of such proposed
supplemental indenture shall have been approved.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be provided with and (subject to Section 601
hereof) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company so
determines, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest, if any, on the
Securities of that series in accordance with the terms of the
Securities of such series and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and, in such
event, the Trustee shall act as the Company's agent to receive
all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company at any time acts as its own Paying Agent with
respect to any series of Securities, it will, on or before each
due date of the principal of (and premium, if any) or interest,
if any, on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company has one or more Paying Agents for any
series of Securities, it will, no later than 11:00 a.m., New York
Time, on or prior to each due date of the principal of (and
premium, if any) or interest, if any, on any Securities of that
series, deposit with a Paying Agent a sum in immediately
available funds 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
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section 1003, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that
series) in the making of any payment of principal (and
premium, if any) or interest, if any, on the Securities of
that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
The Company initially authorizes the Trustee to act as
Paying Agent for the Securities on its behalf. The Company may at
any time and from time to time authorize one or more Persons to
act as Paying Agent in addition to or in place of the Trustee
with respect to any series of Securities issued under this
Indenture.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest, if any, on any
Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the
expense of the Company cause to be mailed, on one occasion only,
notice to such Holder that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence and will use its best efforts to
do or cause to be done all things necessary to preserve and keep
in full force and effect its rights (charter and statutory) and
franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 1005. Maintenance of Properties.
The Company will cause all tangible properties used or
useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section 1005 shall prevent the Company from
discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business
of any Subsidiary.
Section 1006. Maintenance of Insurance.
The Company will maintain, and will cause each of its
Subsidiaries to maintain, with insurers the Company reasonably
believes to be financially sound and reputable, insurance deemed
adequate by the Company with respect to its properties and
business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against
by corporations in the same or similar business. Such insurance
may be subject to co-insurance, deductibility or similar clauses
which, in effect, result in self-insurance of certain losses,
provided that such self-insurance is in accord with the practices
of corporations in the same or similar business and adequate
insurance reserves are maintained in connection with such self-
insurance.
Section 1007. Limitation on Liens.
(a) Nothing contained in this Indenture or in the Securities in
any way restricts or prevents the Company from incurring any
Indebtedness; provided that if this covenant is made applicable
to the Securities of any particular series, the Company will not
issue, assume or guarantee (including any contingent obligation
to purchase) or permit to exist any Debt secured by a Lien upon
any property of the Company, without effectively providing that
the outstanding Securities of such series (together with, if the
Company so determines, any other indebtedness or obligation then
existing or thereafter created ranking equally with such
Securities) shall be secured equally and ratably with (or prior
to) such Debt so long as such Debt shall be so secured (provided,
that for the purpose of providing such equal and ratable
security, the principal amount of Outstanding Securities of any
series of Original Issue Discount Securities shall be such
portion of the principal amount as may be specified in the terms
of that series). This restriction will not, however, apply to:
(i) Liens in existence on the date of the original
issue of the Securities to which this restriction is made
applicable;
(ii) Liens created solely for the purpose of securing
Debt incurred to finance, refinance or refund the purchase
price or cost (including the cost of construction) of property
acquired after the date hereof (by purchase, construction or
otherwise), or Liens in favor of guarantors of obligations or
Debt representing, or incurred to finance, refinance or
refund, such purchase price or cost, provided that no such
Lien shall extend to or cover any property other than the
property so acquired and improvements thereon and provided
further that such Liens are created no later than 24 months
after the purchase or construction;
(iii) Liens on any property or assets acquired from a
corporation which is merged with or into the Company, which
Liens are not created as a result of or in connection with or
in anticipation of any such merger (unless such Liens were
created to secure or provide for the payment of any part of
the purchase price of such corporation);
(iv) any Lien on any property or assets existing at the
time of acquisition thereof and which is not created as a
result of or in connection with or in anticipation of such
acquisition (unless such Lien was created to secure or
provide for the payment of any part of the purchase price
of such property or assets); or
(v) any extension, renewal or replacement of any Lien
referred to in the foregoing clauses, provided that the
principal amount of Debt so secured thereby shall not exceed
the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension,
renewal or replacement Lien shall be limited to all or part
of substantially the same property which secured the Lien
extended, renewed or replaced (plus improvements on such
property).
(b) Notwithstanding the foregoing, the Company may issue or
assume Debt secured by Liens which would otherwise be subject to
the foregoing restrictions in an aggregate principal amount which
does not at the time of issuance or assumption exceed 10% of the
principal amount of the Securities then outstanding.
Section 1008. Statement by Officers as to Compliance.
(a) The Company will deliver to the Trustee on or before
May 15 in each year, an officers' certificate of any of the
principal executive officer, principal financial officer or
principal accounting officer of the Company stating as to such
officers' knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) The Company shall deliver to the Trustee, as soon as
possible and in any event within fifteen (15) days after the
Company becomes aware of the occurrence of any Event of Default
or an event, which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or default and
the action which the Company proposes to take with respect
thereto.
Section 1009. Defeasance of Certain Covenants.
The Company may omit to comply with any term, provision or
condition set forth in Section 801, Sections 1004 to 1007 or in
Section 1012, inclusive, hereof with respect to the Securities of
any series, provided that the following conditions shall have
been satisfied:
(1) the Company has irrevocably deposited or caused to
be irrevocably deposited (in each case except as provided in
Section 402(c) hereof and the last paragraph of Section 1003
hereof) with the Trustee (specifying that each deposit is
pursuant to this Section 1009) as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of such series,
an amount of (i) money or (ii) U.S. Government Obligations
or a combination of money and U.S. Government Obligations,
in each case sufficient, in the opinion of a nationally
recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which the
Trustee shall be instructed to apply to pay and discharge,
the principal of (and premium, if any) and each installment of
principal (and premium, if any) and interest, if any, on the
Outstanding Securities of such series on the Stated Maturity
of such principal or premium or installment of principal,
premium or interest or to and including the Redemption Date
irrevocably designated by the Company pursuant to subparagraph
(4) of this Section 1009 provided, however, that (A) all money
and U.S. Government Obligations deposited pursuant to this
Section 1009 shall be denominated in U.S. Dollars; and (B)
U.S. Government Obligations shall be valued at the amount of
money that they will provide through the payment of principal
and interest in respect thereof in accordance with their terms
no later than one day prior to the Stated Maturity or
Redemption Date, as the case may be, and shall not contain
provisions permitting the redemption or other prepayment at
the option of the issuer thereof prior to the Stated
Maturity or Redemption Date, as the case may be;
(2) no Event of Default or event which with notice or
lapse of time would become an Event of Default (including
by reason of such deposit) with respect to the Securities of
such series shall have occurred and be continuing on the
date of such deposit;
(3) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect (i) that Holders of the
Securities of such series will not recognize income, gain,
loss, or expense for Federal income tax purposes as a result
of such deposit and defeasance of certain obligations and
will take into account all items of income, gain, loss or
expense with respect to the Securities at the same time and
in the same manner as if such deposit and defeasance had not
taken place; (ii) that such provision would not cause any
outstanding Securities of such series then listed on any
national securities exchange to be delisted as a result
thereof; and (iii) that the defeasance trust is not,
or is registered as, an investment company under the
Investment Company Act of 1940;
(4) if the Company has deposited or caused to be
deposited money or U.S. Government Obligations to pay or
discharge the principal of (and premium, if any) and interest,
if any, on the Outstanding Securities of a series to and
including a Redemption Date on which all of the Outstanding
Securities of such series are to be redeemed, such Redemption
Date shall be irrevocably designated by a Board Resolution
delivered to the Trustee on or prior to the date of
deposit of such money or U.S. Government Obligations, and
such Board Resolution shall be accompanied by an irrevocable
Company Request that the Trustee give notice of such
redemption in the name and at the expense of the Company not
less than 30 nor more than 60 days prior to such Redemption
Date in accordance with Section 1104 hereof; and
(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating the
satisfaction and discharge of the obligations of the Company
in respect of any such term, provision or condition, as the
case may be, with respect to the Securities of such series
have been complied with.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Section 801 or
in Sections 1004 to 1007, inclusive, hereof, with respect to the
Securities of any series if before the time for such compliance
the Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
Section 1011. Further Assurances.
The Company shall, at its own cost and expense, execute and
deliver to the Trustee all such other documents, instruments and
agreements and do all such other acts and things as may be
reasonably required, in the opinion of the Trustee, to enable the
Trustee to exercise and enforce its rights under this Indenture
and under the documents, instruments and agreements required
under this Indenture and to carry out the intent of this
Indenture.
Section 1012. Sale and Leaseback Transactions.
If this covenant is made applicable to the Securities of any
series, the Company will not enter into any Sale and Leaseback
Transaction unless either:
(1) the Company would be entitled pursuant to Section
1007 hereof to create Debt secured by a Lien on the property
to be leased back in an amount equal to the Attributable Value
of such Sale and Leaseback Transaction without the Securities
of such series being effectively secured equally and ratably
with (or prior to) that Debt; or
(2) the Company, within 270 days after the sale or
transfer of the relevant assets shall have been made, applies,
in the case of a sale or transfer for cash, an amount equal
to the net proceeds from the sale or, in the case of a sale or
transfer otherwise than for cash, an amount equal to the fair
market value of the property so leased (as determined by any
two Directors of the Company) to:
(a) the retirement of long-term Indebtedness of the
Company ranking prior to or on a parity with the
Securities of such series or
(b) the investment in any property used in the
ordinary course of business by the Company.
SECTION 1013. Calculation of Original Issue Discount
If applicable, the Company shall file with the Trustee
promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on Outstanding Securities as
of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant
under the Internal Revenue Code of 1986, as amended from time to
time.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by
Section 301 hereof for Securities of any series) in accordance
with this Article Eleven.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall
be authorized and evidenced by a certificate of the Company's
President, Chief Financial Officer, Vice President, Treasurer or
Assistant Treasurer. In case of any redemption at the election of
the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such
series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture, or pursuant to an election by the Company
which is subject to a condition specified in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
Securities shall be excluded from eligibility for selection
for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized
officer of the Company and delivered to the Security Registrar at
least 60 days prior to the Redemption Date as being owned of
record and beneficially by, and not pledged or hypothecated by
either (a) the Company or (b) an entity specifically identified
in such written statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date (unless a shorter period is
acceptable to the Trustee), to each Holder of the series of
Securities to be redeemed, at the Holder's address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price (if known),
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, will become due and
payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on
and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, together
with accrued interest, if any,
(6) that the redemption is for a sinking fund, if such
is the case,
(7) the CUSIP or ISIN numbers, if any, assigned to such
Securities (if then generally in use); provided, however, that
such notice may state that no representation is made as to the
correctness of the CUSIP or ISIN numbers either as printed on
the Securities or as contained in any notice of redemption,
in which case none of the Company, the Trustee or any agent of
the Company or the Trustee shall have any liability in respect
of the use of any CUSIP or ISIN number or numbers on such
notices, and the redemption of such Securities shall not be
affected by any defect in or omission of such numbers, and
(8) such other matters as the Company shall deem
desirable or appropriate.
Such notice may state that such redemption shall be
conditional upon the receipt by the Trustee or Paying Agent, on
or prior to the Redemption Date, of money sufficient to pay the
Redemption Price and accrued and unpaid interest, if any, on such
Securities and that if such money shall not have been so received
such notice shall be of no force and effect and the Company shall
not be required to redeem such Securities; provided, however,
that any notice of redemption shall become unconditional and
irrevocable upon the deposit of money or U.S. Government
Obligations, or a combination of money and US Government
Obligations, with the Trustee or the Paying Agent pursuant to
Section 403 or Section 1009. If such notice of redemption
contains such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the
Trustee or the Paying Agent for the Securities otherwise to have
been redeemed shall promptly return to the Holders thereof any of
such Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a
condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to 11:00 A.M., New York City time, on any
Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section
1003 hereof) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are
to be redeemed on that date (to the extent that such amounts are
not already on deposit at such time in accordance with the
provisions of Sections 401, 403 or 1009 hereof).
Section 1106. Securities Payable on Redemption Date.
(a) Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the Company shall
default in the payment of the Redemption Price and accrued and
unpaid interest, if any) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued and unpaid
interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307
hereof.
(b) If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security (including any Global Security) which is to be
redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a
new Security or Securities of the same series, of any authorized
denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered; provided, that if a
Global Security is so surrendered, the new Global Security shall
be in a denomination equal to the unredeemed portion of the
principal of the Global Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except
as otherwise specified as contemplated by Section 301 hereof for
Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as
a "mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Securities of
any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202 hereof. Each
sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash,
the Company may at its option (a) deliver to the Trustee
Securities of such series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Company or receive credit for Securities of
such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 309
hereof, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section 1202,
or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Company through any
optional redemption provision contained in the terms of such
series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund Redemption Price
specified in such Securities.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to
the Trustee an Officers' Certificate specifying (a) the amount of
the next ensuing sinking fund payment for that series pursuant to
the terms of that series, (b) whether or not the Company intends
to exercise its right, if any, to make an optional sinking fund
payment with respect to such series on the next ensuing sinking
fund payment date and, if so, the amount of such optional sinking
fund payment, and (c) the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202 hereof, and will also
deliver to the Trustee any Securities to be so delivered. Such
written statement shall be irrevocable and upon its receipt by
the Trustee the Company shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such 60th day, to
deliver such written statement and Securities specified in this
paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of
the Company (i) that the mandatory sinking fund payment for such
series due on the next succeeding sinking fund payment date shall
be paid entirely in cash without the option to deliver or credit
Securities of such series in respect therefor and (ii) that the
Company will make no optional sinking fund payment with respect
to such series as provided in this Section 1203.
Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section
1103 hereof and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the
manner provided in Section 1104 hereof. Such notice having been
duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1105, 1106 and
1107 hereof.
The Trustee shall not redeem or cause to be redeemed any
Security of a series with sinking fund moneys or mail any notice
of redemption of Securities of such series by operation of the
sinking fund during the continuance of a default in payment of
interest with respect to Securities of that series or an Event of
Default with respect to the Securities of that series except
that, where the mailing of notice of redemption of any Securities
shall theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall have
received from the Company a sum sufficient for such redemption.
Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default,
shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and
held for the payment of all such Securities. In case such Event
of Default shall have been waived as provided in Section 513
hereof or the default or Event of Default cured on or before the
60th day preceding the sinking fund payment date, such moneys
shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section 1203 to the
redemption of such Securities.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all,
series, may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, for any purpose
specified in Section 1301, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the Company, at
any other place. Notice of every such meeting, setting forth the
time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in
the manner provided herein, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting
of the Holders of Securities of one or more, or all, series, by
the Company or by the Holders of 33% in aggregate principal
amount of all of such series, considered as one class, for any
purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice of such
meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The
City of New York, or in such other place as shall be determined
or approved by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, shall be valid without notice if the Holders of all
Outstanding Securities of such series are present in person or by
proxy and if representatives of the Company and the Trustee are
present, or if notice is waived in writing before or after the
meeting by the Holders of all Outstanding Securities of such
series, or by such of them as are not present at the meeting in
person or by proxy, and by the Company and the Trustee.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, a Person shall be (a)
a Holder of one or more Outstanding Securities of such series, or
(b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series with
respect to which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a quorum for
a meeting of Holders of Securities of such series; provided,
however, that if any action is to be taken at such meeting which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series,
considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding
Securities of such series, considered as one class, shall
constitute a quorum. In the absence of a quorum within one hour
of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series,
be dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by the provisions of this Indenture, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted only by the affirmative vote of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of
the series with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series,
considered as one class, may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section
shall be binding on all the Holders of Securities of the series
with respect to which such meeting shall have been held, whether
or not present or represented at the meeting.
Section 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such
proxy shall remain in effect and be binding upon any future
Holder of the Securities with respect to which it was given
unless and until specifically revoked by the Holder or future
Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to
proof of the holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in
the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders as provided in Section
1302(b), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series represented at
the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $1 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged
as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a
quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series represented at the meeting,
considered as one class; and the meeting may be held as so
adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed
the signatures of the Holders or of their representatives by
proxy and the principal amounts and serial numbers of the
Outstanding Securities, of the series with respect to which the
meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the
secretary of the meeting their verified written reports of all
votes cast at the meeting. A record of the proceedings of each
meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and
verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at
the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
Section 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made,
given or taken by Holders by written instruments as provided in
Section 104.
ARTICLE FOURTEEN
MISCELLANEOUS
Section 1401. Counterparts.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first
above written.
WESTERN MASSACHUSETTS ELECTRIC
COMPANY
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer - Finance
THE BANK OF NEW YORK,
as Trustee
By /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Vice President
STATE OF CONNECTICUT )
) ss. :
COUNTY OF HARTFORD )
On the 29th day of September, 2003, before me personally
came Xxxxx X. Xxxxx, to me known, who, being by me duly sworn,
did depose and say that he is the Assistant Treasurer - Finance
of Western Massachusetts Electric Company, one of the
corporations described in and which executed the foregoing
instrument; and that he signed his name thereto by authority of
the Board of Directors of said corporation.
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Notary Public
My commission expires Jan. 31, 0000
XXXXX XX XXX XXXX )
) ss. :
COUNTY OF NEW YORK )
On the 29th day of September, 2003, before me personally
came Xxxxxxxx Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he is a Vice President of The Bank of New
York, a New York banking corporation, one of the corporations
described in and which executed the foregoing instrument; and
that he signed his name thereto by authority of the Board of
Directors of said corporation.
{SEAL} /s/ Xxxxxxx X. Xxxxxxx
[Notary Public Information]
Xxxxxxx X. Xxxxxxx
Notary Public, State of New
York
No. 01CA5027729
Qualified in Bronx County
Commission Expires May 18, 2006
