1
Exhibit (4)-3
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Consumers Power Company, Issuer
and
The Bank of New York, Trustee
INDENTURE
Dated as of January ___, 1996
Subordinated Debt Securities
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2
CROSS REFERENCE SHEET
_____________
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
____________, 1996 between Consumers Power Company and The Bank of New York:
Section of the Act Section of Indenture
------------------ --------------------
310(a)(1) and (2)............. 6.9
310(a)(3) and (4)............. Inapplicable
310(b)........................ 6.8 and 6.10(a), (b) and (d)
310(c)........................ Inapplicable
311(a)........................ 6.13(a) and (c)(1) and (2)
311(b)........................ 6.13(b)
311(c)........................ Inapplicable
312(a)........................ 4.1 and 4.2(a)
312(b)........................ 4.2(a) and (b)(i) and (ii)
312(c)........................ 4.2(c)
313(a)........................ 4.4(a)
313(b)(1)..................... Inapplicable
313(b)(2)..................... 4.4(b)
313(c)........................ 4.4(c)
313(d)........................ 4.4(d)
314(a)........................ 4.3
314(b)........................ Inapplicable
314(c)(1) and (2)............. 13.5
314(c)(3)..................... Inapplicable
314(d)........................ Inapplicable
314(e)........................ 13.5
314(f)........................ Inapplicable
315(a), (c) and (d)........... 6.1
315(b)........................ 5.11
315(e)........................ 5.12
316(a)(1)..................... 5.9
316(a)(2)..................... Not required
316(a) (last sentence)........ 7.4
316(b)........................ 5.7
316(c)........................ Not required
317(a)........................ 5.2
317(b)........................ 3.4(a) and (b)
318(a)........................ 13.7
________________
* This Cross Reference Sheet is not part of the Indenture.
3
TABLE OF CONTENTS
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Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS
Authorization of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consumers Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Holder", "Holder of Securities", "Securityholder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Preferred Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Security" or "Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Security Register" and "Security Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Trust Indenture Act of 1939" or "Trust Indenture Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE TWO
SECURITIES . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.4 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.5 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.6 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.7 Denomination of Securities; Payments of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.10 Cancellation of Securities; Destruction Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.12 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE THREE
COVENANTS OF THE ISSUER . . . . . . . . . . . . . . . . . . . 21
Section 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.3 Appointment to Fill a Vacancy in Office of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.4 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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Section 3.5 Limitation on Dividends; Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.6 Covenants as to Consumers Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE . . . . 25
Section 4.1 Issuer to Furnish Trustee Names and Addresses of Securityholders . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.2 Preservation and Disclosure of Securityholders Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.4 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT . . . . 30
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default. . . . . . . . . . . . . . . . . . . . . 30
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.3 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.4 Suits for Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.5 Restoration of Rights on Abandonment of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.6 Limitations on Suits by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.7 Unconditional Right of Securityholders to Receive Principal and Interest and to Institute Certain Suits . . . 37
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default . . . . . . . . . . . . . . . . . . . 38
Section 5.9 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.10 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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Section 5.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances . . . . . . . . . . . . . . . . 39
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.13 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE SIX
CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . 40
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default . . . . . . . . . . . . . . . . . 40
Section 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof . . . . . 43
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.6 Compensation and Indemnification of Trustee and Its Prior Claim . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.8 Qualification of Trustee; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.9 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.10 Resignation and Removal; Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.11 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee . . . . . . . . . . . . . . . . . . . . 48
Section 6.13 Preferential Collection of Claims Against the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS . . . . . . . . . . . . . . . . . 50
Section 7.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 7.2 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 7.3 Holders to Be Treated as Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . 53
Section 8.1 Supplemental Indentures Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 8.2 Supplemental Indentures With Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 8.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.5 Notation on Securities in Respect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE . . . . . . . . . . . . . . . 57
Section 9.1 Covenant of Issuer Not to Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions . . . . 57
Section 9.2 Successor Corporation Substituted for Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 9.3 Opinion of Counsel Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS . . . . . . . . . . . 59
Section 10.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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Section 10.2 Application by Trustee of Funds Deposited for Payment of Securities . . . . . . . . . . . . . . . . . . . . 62
Section 10.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Three Years . . . . . . . . . . . . . . . . 62
Section 10.5 Indemnity for Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . . . . . . . . . . 63
Section 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 11.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption . . . . . . . . . . . . . . . 65
Section 11.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE TWELVE
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . 68
Section 12.1 Applicability of Article; Securities Subordinated to Senior Indebtedness . . . . . . . . . . . . . . . . . . 68
Section 12.2 Issuer Not to Make Payments with Respect to Subordinated Securities in Certain Circumstances . . . . . . . . 69
Section 12.3 Subordinated Securities Subordinated to Prior Payment of All Senior Indebtedness on Dissolution, Liquidation
Reorganization of Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 12.4 Holders of Subordinated Securities to be Subrogated to Right of Holders of Senior Indebtedness . . . . . . . 73
Section 12.5 Obligation of the Issuer Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 12.6 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice . . . . . . . . . . . . . . . . . . . 75
Section 12.7 Application by Trustee of Monies or Government Obligations Deposited with It . . . . . . . . . . . . . . . . 75
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Section 12.8 Subordination Rights Not Impaired by Acts or Omissions of Issuer or Holders of Senior Indebtedness . . . . . 76
Section 12.9 Securityholders Authorize Trustee to Effectuate Subordination of Securities . . . . . . . . . . . . . . . . . 76
Section 12.10 Right of Trustee to Hold Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 12.11 Article Twelve Not to Prevent Events of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 78
Section 13.1 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability . . . . . . . 78
Section 13.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities . . . . . . . . . . . . . . 78
Section 13.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 13.4 Notices and Demands on Issuer, Trustee and Holders of Securities . . . . . . . . . . . . . . . . . . . . . . 78
Section 13.5 Officers' Certificates and Opinions of Counsel; Statements to be Contained Therein . . . . . . . . . . . . . 79
Section 13.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 13.7 Conflict of any Provision of Indenture with Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . 81
Section 13.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 13.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 13.10 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 13.11 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
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THIS INDENTURE dated as of January ___, 1996 between Consumers Power
Company, a Michigan corporation (the "Issuer"), and The Bank of New York,
organized under the laws of the United States, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time
of its debentures, notes, bonds or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939,
including terms defined therein by reference to the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such
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accounting principles as are generally accepted in the United States of America
at the time of any computation. References to any statute mean such statute as
amended at the time and includes any successor legislation. The words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as
the singular.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"Business Day" means a day on which banking institutions in New York,
New York or Delaware are not authorized or required by law or regulation to
close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties at such
time.
"Common Securities" means undivided beneficial interests in the
assets of a Consumers Trust which rank pari passu with Preferred Securities
issued by such trust; provided, however, that upon the occurrence of an Event
of Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and maturity are
subordinated to the rights of holders of Preferred Securities.
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"Common Securities Guarantee" means any guarantee that the Issuer
may enter into that operates directly or indirectly for the benefit of holders
of Common Securities of Consumers Trust.
"Consumers Trust" means a Delaware business trust formed by the
Issuer for the purpose of purchasing the Securities of the Issuer.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 Xxxxxxx Xx., Xxx Xxxx, Xxx Xxxx 00000.
"Declaration" means, in respect of a Consumers Trust, the amended
and restated declaration of trust of such Consumers Trust or any other
governing instrument of such Trust.
"Depository" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depository by the Issuer pursuant to Section 2.3, which must be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation, until a successor
Depository shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depository" shall mean each Person who is then a
Depository hereunder; and if at any time there is more than one such Person,
"Depository" as used with respect to the Securities of any such series shall
mean each Depository with respect to the Global Securities of such series.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a
series of Securities issued to the Depository, or its nominee, for such series
in accordance with Section 2.4, and bearing the legend prescribed in Section
2.4.
"Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is
unconditionally guaranteed by the United States, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of a holder of a depository receipt; provided that (except as required
by law)
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such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean the Person in whose name such Security is registered in the Security
Register kept by the Issuer for that purpose in accordance with the terms
hereof.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as provided hereunder.
"Interest Payment Date" means (a) the date or dates, if any, on which
interest is to be paid on any Security as established pursuant to Section
2.3(f), (b) the date of maturity or redemption of such Security, and (c) only
with respect to defaulted interest on such Security, the date established for
the payment of such defaulted interest pursuant to Section 2.7 hereof.
"Issuer" means (except as otherwise provided in Article Six)
Consumers Power Company, a Michigan corporation, and, subject to Article Nine,
its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the Chairman, the President or any Vice President
(whether or not designated by a number or numbers or a word or words added
before or after the title "Vice President") or by the Treasurer of the Issuer.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or any Vice President (whether or not designated by a number or
numbers or a word or words added before or after the title "Vice President"),
and by the Chief Financial Officer, Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary, of the Issuer and delivered to the
Trustee. Except as otherwise provided herein, each such certificate shall
include the statements provided for in Section 14.5.
"Opinion of Counsel" means an opinion in writing signed by the
counsel of the Issuer as designated by the Board of
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Directors or by such other legal counsel who may be an employee of or regular
counsel to the Issuer and who shall be satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section 13.5, if and to
the extent required thereby.
"Outstanding" (except as otherwise provided in Section 6.8), when
used with reference to Securities, shall, subject to the provisions of Section
7.4, mean, as of any particular time, all Securities theretofore authenticated
and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys or Government Obligations (as provided for in Section
10.1) in the necessary amount shall have been theretofore deposited in
trust with the Trustee or with any paying agent (other than the Issuer) or
shall have been set aside, segregated and held in trust by the Issuer for
the Holders of such Securities (if the Issuer shall act as its own paying
agent), provided that if such Securities, or portions thereof, are to be
redeemed prior to the Maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a Person in whose hands such Security is a legal,
valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder Securities owned
by the Issuer or any other obligor upon the Securities of any Affiliate of the
Issuer or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act
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with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or an Affiliate of the Issuer or of such
other obligor.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Preferred Securities" means undivided beneficial interests in the
assets of a Consumers Trust which rank pari passu with Common Securities issued
by such trust; provided however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the Issuer
may enter into that operates directly or indirectly for the benefit of holders
of Preferred Securities of a Consumers Trust.
"principal" means the amount (including, without limitation, if and
to the extent applicable, any premium) that is payable with respect to a
Security as of any date and for any purpose (including, without limitation, in
connection with any sinking fund, upon any redemption at the option of the
Issuer, upon any purchase or exchange at the option of the Issuer or the Holder
of such Security and upon any acceleration of the Maturity of such Security).
"Property Trustee" means the entity performing the functions of the
Property Trustee of a Consumers Trust under the applicable Declaration of such
Consumers Trust.
"Record Date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means
the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president (whether or not designated by numbers or words added before or
after the title "vice president"), the cashier, the secretary, the treasurer,
any trust officer, any assistant trust officer, any assistant vice president,
any assistant cashier, any assistant secretary, any assistant treasurer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any
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corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Security" or "Securities" (except as otherwise provided in Section
6.8) shall have the meaning stated in the first recital of this Indenture and,
more particularly, any Securities that have been authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" shall have the
respective meanings set forth in Section 2.8.
"Senior Indebtedness" shall have the meaning set forth in Section
12.1(b).
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Issuer or by one
or more other Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Stated Maturity" means, when used with respect to any Security or
any installment of principal thereof or interest thereon, the date specified in
such Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Trust Indenture Act of 1939" or "Trust Indenture Act" (except as
otherwise provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was originally
executed.
"Trust Securities" means Common Securities and Preferred Securities.
"Trustee" means the Person identified as the "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder; and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with
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this Indenture) as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent established
pursuant to rather than set forth in a Board Resolution, an Officers'
Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification and such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities as
evidenced by their execution of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities as evidenced by their
execution of such Securities.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
__________________________________,
as Trustee
By_______________________
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's certificate of
authentication to be borne by the Securities of each such series shall be
substantially as follows:
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"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
_________________________,
as Authenticating Agent
By_______________________
Authorized Officer"
Section 2.3 Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series and shall be
direct obligations of the Issuer.
(c) Each Security shall be dated and issued as of the date of its
authentication by the Trustee.
(d) Each Security shall bear interest from the later of its original
date of authentication or the most recent Interest Payment Date to which
interest has been paid or duly provided for with respect to such Security until
the principal of such Security is paid or made available for payment, and
interest on each Security shall be payable on each Interest Payment Date after
the date of such Security.
(e) Each Security shall mature on a date specified in the Security
and the principal amount of each outstanding Security shall be payable on the
Maturity specified therein.
(f) There shall be established in or pursuant to one or more Board
Resolutions (and, to the extent established pursuant to rather than set forth
in a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series:
(1) the designation of the Securities of such series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of such series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
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registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
11.3);
(3) subject to Section 2.3(e), the date or dates (and whether fixed
or extendible) on which the principal of the Securities of such series is
payable;
(4) the date from which interest on the Securities of such series
shall begin to accrue, the rate or rates at which the Securities of such
series shall bear interest, if any, the Interest Payment Date or Dates for
the Securities of such series and the Record Date for interest payable on
any Interest Payment Date;
(5) the place or places where the principal of and any interest on
Securities of such series shall be payable and where such Securities may
be registered or transferred (if in addition to, or other than, as
provided in Section 3.2);
(6) the right, if any, of the Issuer to redeem or purchase
Securities of such series, in whole or in part, at its option and the
period or periods within which, the price or prices at which and any terms
and conditions upon which Securities of such series may be so redeemed;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of such series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which
and any terms and conditions upon which Securities of such series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $25 and any integral multiple
thereof, the denominations in which Securities of such series shall be
issuable;
(9) whether the Securities of such series will be subordinated to
the payment of Senior Indebtedness on the terms and conditions set forth
in Article Twelve and whether such subordination shall be subject to any
provisions in addition to or in lieu of those set forth in Article Twelve;
(10) whether the Securities of such series will be issuable as
Global Securities;
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(11) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of such series held by a person who
is not a U.S. Person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Issuer will have the
option to redeem such Securities rather than pay such additional amounts;
(12) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, and
the form and terms of any such certificates, documents or conditions;
(13) any trustees, depositaries, authenticating or paying agents,
transfer agents, conversion agents or registrars or any other agents with
respect to the Securities of such series;
(14) any events of default or covenants with respect to the
Securities of such series other than those specified herein;
(15) the Person to whom any interest on a Security of such series
shall be payable, if other than the Person in whose name the Security (or
one or more predecessor Securities) is registered at the close of business
on the Record Date for such interest;
(16) if the Securities of such series shall be issued in whole or in
part in the form of one or more Global Securities, whether beneficial
owners of interests in any such Global Security may exchange such
interests for Securities of such series of like tenor and of authorized
form and denomination and the circumstances under which any such changes
may occur, if other than in the manner provided in Section 2.8;
(17) the right of the Issuer, if any, to defer any payment of
principal of or interest on the Securities of such series, and the maximum
length of any such deferral period;
(18) whether any property will be pledged to secure the Securities;
and
(19) any other terms of such series (which terms shall not be
inconsistent with the provisions of this Indenture).
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All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate referred to above or
as set forth in any indenture supplemental hereto referred to above. All
Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such Officers' Certificate or
in any such indenture supplemental hereto.
Section 2.4 Authentication and Delivery of Securities. The Issuer
may from time to time deliver Securities of any series, executed by the Issuer
to the Trustee for authentication, together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon authenticate
and deliver such Securities to or upon the order of the Issuer (contained in
the Issuer Order referred to below in this Section) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be specified
from time to time by an Issuer Order. If so provided in the Board Resolution,
Officers' Certificate or supplemental indenture establishing the Securities of
any series, the maturity date, interest accrual date, interest rate, Interest
Payment Date or Dates and any other terms of any or all of the Securities of
such series may be determined by or pursuant to such Issuer Order and
procedures. If provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to instructions (from the Issuer
or its duly authorized agent) in writing, by facsimile or any other method
mutually agreed upon by the Issuer and Trustee. In authenticating the
Securities of a series and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive (but, in the case of subparagraphs 2, 3 and 4 below, only at or before
the time of the first request of the Issuer to the Trustee to authenticate
Securities of such series, however, any request after the first shall be deemed
to include the representation of the Issuer that the document previously
delivered pursuant to subparagraphs 2, 3 and 4 below are still true and in
effect) and (subject to Section 6.1) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities are not to be delivered to the
Issuer.
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of such series were
established;
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(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities of such series stating (a) that such form or forms
and terms have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture, (b) the aggregate principal amount of all of
the Securities outstanding under this Indenture and (c) covering such
other matters as the Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter addressed to the Trustee permitting it to rely on an Opinion of
Counsel, substantially to the effect that:
(a) the forms of the Securities of such series have been duly
authorized and established in conformity with the provisions of this
Indenture;
(b) the terms of the Securities of such series have been duly
authorized and established in conformity with the provisions of this
Indenture;
(c) when the Securities of such series have been executed by
the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by
the purchasers thereof, they will have been duly issued under this
Indenture and will be valid and legally binding obligations of the
Issuer, enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity, and will be
entitled to the benefits of this Indenture;
(d) the Indenture has been duly authorized, executed and
delivered by the Issuer and constitutes a legal, valid and binding
agreement of the Issuer, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating
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to or affecting the enforcement of creditors' rights and to general
principles of equity;
(e) the issuance of the Securities will not result in any
default under this Indenture, or any other contract, indenture, loan
agreement or other instrument to which the Issuer is a party or by
which it or any of its property is bound; and
(f) no consent, approval, authorization, order, registration or
qualification of or with any governmental agency or body having
jurisdiction over the Issuer is required for the execution and
delivery of the Securities of such series by the Issuer, except such
as have been obtained (except that no opinion need be expressed as to
state securities or Blue Sky laws).
The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section (other than Securities
the forms and terms of which shall have been established by supplemental
indenture) if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken by the Issuer or if the Trustee in good faith
by its board of directors or board of trustees, executive committee or a trust
committee of directors, trustees or Responsible Officers shall determine that
such action would expose the Trustee to personal liability to existing Holders
or would affect the Trustee's rights, duties or immunities under the Securities
of any such series, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall be in an
aggregate amount equal to the aggregate principal amount specified in such
Issuer Order, (ii) shall be registered in the name of the Depository therefor
or its nominee, (iii) shall be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depository to the nominee of
the Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository."
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Section 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Issuer by both (a) its Chairman, its President or any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the title "Vice President"), under its corporate seal
reproduced thereon, which need not be attested and (b) by its Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary. Such signatures may be the manual or facsimile signatures of such
officers. Typographical and other minor errors or defects in any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have so signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be so signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
Section 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. The execution of such certificate by
the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Issuer,
and the Issuer shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10, together with a written statement (which need not
comply with Section 14.5 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Issuer, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 2.7 Denomination of Securities; Payments of Interest. The
Securities of each series shall be issuable in registered form in denominations
established as contemplated by Section 2.3. The Securities of each series
shall be numbered,
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lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Issuer executing the same may determine with the
approval of the Trustee, as evidenced by the execution and authentication
thereof.
The Securities of each series shall bear interest from the date, and
such interest shall be payable on the Interest Payment Dates, established as
contemplated by Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any Record Date applicable to such series with respect
to any Interest Payment Date for such series shall be entitled to receive the
interest, if any, payable on such Interest Payment Date notwithstanding any
transfer or exchange of such Security subsequent to the Record Date and prior
to such Interest Payment Date, except if and to the extent the Issuer shall
default in the payment of the interest due on such Interest Payment Date, in
which case such defaulted interest shall be paid to the Persons in whose names
Outstanding Securities of such series are registered at the close of business
on a subsequent Record Date (which shall be not less than five Business Days
prior to the date of payment of such defaulted interest) established by notice
given by mail by or on behalf of the Issuer to the Holders of Securities of
such series not less than 15 days preceding such subsequent Record Date. The
term "Record Date", as used with respect to any Interest Payment Date (except a
date for payment of defaulted interest) for the Securities of any series, shall
mean the date specified as such in the terms of the Securities of such series
established as contemplated by Section 2.3.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 2.8 Registration, Transfer and Exchange. The Issuer will
keep, or cause to be kept, at the Corporate Trust Office and at each other
office or agency to be maintained for the purpose as provided in Section 3.2
for each series of Securities a register or registers (collectively, the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, it will provide for the registration of Securities of such series
and the registration of transfer of Securities of such series. The Security
Register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers not maintained by the Trustee shall
be open for inspection by the Trustee. Unless and until otherwise determined
by the Issuer pursuant to Section 2.3, the Security Register with respect to
each series of Securities
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shall be kept solely at the Corporate Trust Office and, for this purpose, the
Trustee shall be designated the "Security Registrar."
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series, maturity date and
interest rate in authorized denominations for a like aggregate principal
amount.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for one or
more Securities of such series in authorized denominations for a like aggregate
principal amount, upon surrender of such Securities to be exchanged at the
office or agency to be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. All
Securities surrendered upon any exchange or transfer provided for in this
Indenture shall be promptly cancelled and disposed of by the Trustee and the
Trustee will deliver a certificate of disposition thereof to the Issuer.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities, other than exchanges
pursuant to Sections 2.11, 8.5 and 11.2 not involving any transfer. No service
charge shall be made for any such transaction.
The Issuer shall not be required to (a) issue, exchange or register a
transfer of any Securities of any series for a period of 15 days next preceding
the first mailing or publication of notice of redemption of Securities of such
series to be redeemed or (b) exchange or register the transfer of any
Securities selected, called or being called for redemption, in whole or in
part, except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed.
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Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depository for such
Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by such
Depository or any such nominee to a successor Depository for such Global
Security or a nominee of such successor Depository.
If at any time a Depository for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depository for such Securities or if at any
time any such Depository shall no longer be eligible as a Depository, the
Issuer shall appoint a successor Depository with respect to the Securities held
by such Depository. If a successor Depository is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Securities of such series shall no longer be represented by
one or more Global Securities held by such Depository, and the Issuer shall
execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of definitive Securities of such series, shall
authenticate and deliver Securities of such series in definitive registered
form without coupons, in any authorized denominations and in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities held by such Depository in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of a particular series shall no longer be represented by a
Global Security or Securities. In such event, the Issuer shall execute, and
the Trustee, upon receipt of an Issuer Order for the authentication and
delivery of definitive Securities of such series, shall authenticate and
deliver, Securities of such series in definitive registered form in any
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing Securities
of such series in exchange for such Global Security or Securities.
If so specified by the Issuer pursuant to Section 2.3 with respect to
Securities of a particular series represented by a Global Security, the
Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for Securities of such series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depository. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver:
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(i) to each Person specified by such Depository a new Security or
Securities of such series, in any authorized denominations requested by
such Person, in an aggregate principal amount equal to, and in exchange
for, such Person's beneficial interest in the Global Security; and
(ii) to such Depository a new Global Security in a denomination
equal to the difference between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of any Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities
in definitive registered form without coupons issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depository for such Global Security, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange
of Securities shall be valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon receipt of an Issuer Order, the Trustee shall
authenticate and deliver a new Security of the same series, maturity date and
interest rate, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
or defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Issuer and to the Trustee or any agent of the
Issuer or the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them and any agent of either of them
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof and, in the case of mutilation or defacement, shall surrender
the Security to the Trustee or such agent.
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Upon the issuance of any substitute Security the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee or its agent) connected therewith. In case
any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee or any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the Issuer or any
agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and
no Securities shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Trustee or its agent shall
dispose of cancelled Securities held by it and deliver a certificate of
disposition to the Issuer. If the Issuer or its agent shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented
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by such Securities unless and until the same are delivered to the Trustee or
its agent for cancellation.
Section 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Securities
of such series may be surrendered in exchange for such definitive Securities in
registered form without charge at each office or agency to be maintained for
such purpose in accordance with Section 3.2 and the Trustee shall authenticate
and deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series in
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 2.3. The provisions of this Section are subject to any restrictions or
limitations on the issue and delivery of temporary Securities of any series
that may be established pursuant to Section 2.3.
Section 2.12 Computation of Interest. Except as otherwise specified
as contemplated by Section 2.3 for Securities of any series, interest, if any,
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest, if any, on,
each of the Securities of such series (together with any additional
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amounts payable pursuant to the terms of such Securities) at the place or
places, at the respective times and in the manner provided in such Securities
and in this Indenture. The interest on Securities (together with any
additional amounts payable pursuant to the terms of such Securities) shall be
payable only to or upon the written order of the Holders thereof and, at the
option of the Issuer, may be paid by wire transfer or by mailing checks for
such interest payable to or upon the written order of such Holders at their
last addresses as they appear on the registry books of the Issuer.
Section 3.2 Offices for Payments, etc. So long as any Securities
are outstanding hereunder, the Issuer will maintain in The City of New York,
State of New York an office or agency where the Securities of each series may
be presented for payment, where the Securities of each series may be presented
for exchange as in this Indenture provided, and where the Securities of each
series may be presented for registration of transfer as in this Indenture
provided.
The Issuer will maintain in The City of New York an office or agency
where notices and demands to or upon the Issuer in respect of the Securities of
any series, or this Indenture may be served.
The Issuer will give to the Trustee prompt written notice of the
location of each such office or agency and of any change of location thereof.
In case the Issuer shall fail to maintain any office or agency required by this
Section to be located in The City of New York, State of New York or shall fail
to give such notice of the location or of any change in the location of any of
the above offices or agencies, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee, and, in
such event, the Trustee shall act as the Issuer's agent to receive all such
presentations, surrenders, notices and demands.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of any series may be presented for
payment, where the Securities of such series may be presented for exchange as
in this Indenture provided, where the Securities of such series may be
presented for registration of transfer as in this Indenture provided and the
Issuer may from time to time rescind any such designation; provided, however,
that no such designation or rescission shall in any manner relieve the Issuer
of its obligation to maintain any office or agency provided for in this
Section. The Issuer will give to the Trustee prompt written notice of any such
designation or rescission thereof and of change in the location of any such
other office or agency.
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Section 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
Section 3.4 Paying Agents. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(a) that such paying agent will hold all sums received by it as such
agent for the payment of the principal of or interest, if any, on the
Securities of such series (whether such sums have been paid to it by the
Issuer or by any other obligor on the Securities of such series) in trust
for the benefit of the Holders of the Securities of such series entitled
thereto or of the Trustee until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(b) that such paying agent will give the Trustee notice of any
failure by the Issuer (or by any other obligor on the Securities of such
series) to make any payment of the principal of or interest on the
Securities of such series when the same shall be due and payable; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest, if any, on the Securities of any series, deposit with the paying
agent a sum sufficient to pay such principal or interest so becoming due, such
sum to be held in trust for the benefit of the Holders of the Securities of
such series entitled to such principal or interest, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest, if any, on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series a sum sufficient to pay such principal or interest, if any, so becoming
due until such sums shall be paid to such Holders or
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otherwise disposed of as herein provided. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this section to the contrary notwithstanding, but subject
to Section 10.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained, and, upon such payment by any paying
agent to the Trustee, such paying agent shall be released from all further
liability with respect to such money.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
Section 3.5 Limitation on Dividends; Transactions with Affiliates. (a)
If Securities are issued to a Consumer's Trust or a trustee of such trust in
connection with the issuance of Trust Securities by such Consumers Trust and
(i) there shall have occurred any event that would constitute an Event of
Default or (ii) the Company shall be in default with respect to its payment or
any obligations under the Preferred Securities Guarantee or Common Securities
Guarantee relating to such Trust Securities, then (x) the Company shall not
declare or pay any dividend on , make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock, (y) the Company shall not make any payment of interest or
principal or premium, if any, on, or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company which rank pari passu
with or junior to such Securities and (z) the Company shall not make guarantee
payments with respect to the foregoing (other than pursuant to the Preferred
Securities Guarantee).
(b) If Securities are issued to a Consumers Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such
Consumers Trust and the Company shall have given notice of its election to
defer payments of interest on such Securities by extending the interest payment
period as provided in any indenture supplemental hereto and such period, or any
extension thereof, shall be continuing, then (i) the Company shall not declare
or pay any dividend, or make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any of its capital
stock, (ii) the Company shall not make any payment of interest, or principal or
premium, if any, on, or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Company which
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rank pari passu with or junior to such Securities and (iii) the Company shall
not make any guarantee payments with respect to the foregoing (other than
pursuant to the Preferred Securities Guarantee), provided, however, the Company
may declare and pay a stock dividend where the dividend stock is the same stock
as that on which the dividend is being paid.
Section 3.6 Covenants as to Consumers Trust. In the event
Securities are issued to a Consumers Trust or a trustee of such trust, in
connection with the issuance of Trust Securities by such trust, for so long as
such Trust Securities remain outstanding, the Company will (i) maintain 100%
direct or indirect ownership of the Common Securities of such trust; provided,
however, that any permitted successor of the Company under the Indenture may
succeed to the Company's ownership of the Common Securities, (ii) not cause, as
sponsor of such trust, or permit, as holder of Common Securities of such trust,
the dissolution, winding-up or termination of such trust, except in connection
with a distribution of Securities as provided in the Declaration and in
connection with certain mergers, consolidations or amalgamations permitted by
the Declaration and (iii) use its reasonable efforts to cause such trust (a) to
remain a business trust, except in connection with a distribution of
Securities, the redemption of all of the Trust Securities of such Consumers
Trust or certain mergers, consolidations or amalgamations, each as permitted by
the Declaration of such Consumers Trust, and (b) to otherwise continue to be
classified for United States federal income tax purposes as a grantor trust.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Names and Addresses of
Securityholders. The Issuer and any other obligor on the Securities covenant
and agree that they will furnish or cause to be furnished to the Trustee a list
in such form as the Trustee may reasonably require of the names and addresses
of the Holders of the Securities of each series:
(a) semi-annually and not more than 15 days after each Record Date
for the payment of interest on such Securities, as of such Record Date and
on dates to be determined pursuant to Section 2.3 for non-interest bearing
Securities, in each year; and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request, as of a
date not more than
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15 days prior to the time such information is furnished; provided that if
and so long as the Trustee shall be the Security Registrar for such series
such list shall not be required to be furnished.
Section 4.2 Preservation and Disclosure of Securityholders Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to it
as provided in Section 4.1, (ii) received by it in the capacity of Security
Registrar for such series, if so acting, and (iii) filed with it within the two
preceding years pursuant to Section 4.4(c)(ii). The Trustee may destroy any
list furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case the applicants must all
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and such
application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection
(a) of this Section; or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series or of all Securities, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Trustee, in accordance with the provisions of such subsection (a)
and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of such series or all Holders of Securities,
whose name and address
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appears in the information preserved at the time by the Trustee in accordance
with the provisions of such subsection (a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Securities of
such series or of all Securities, as the case may be, or would be in violation
of applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection
(b) of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under such subsection (b).
Section 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Issuer may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or if the Issuer is not required to file
information, documents or reports pursuant to either of such Sections,
then to file with the Trustee and the
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Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic
information, documents, and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a debt
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Issuer with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations;
(c) to transmit by mail to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents
and reports required to be filed by the Issuer pursuant to subsections (a)
and (b) of this Section as may be required to be transmitted to such
Holders by rules and regulations prescribed from time to time by the
Commission; and
(d) to furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Issuer's compliance with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice provided under this Indenture).
Section 4.4 Reports by the Trustee. (a) Annually, not later than
60 days after May 15 of each year, the Trustee shall transmit to the Holders
and the Commission a report with respect to events described in Section 313(a)
of the Trust Indenture Act, in such manner and to the extent revised
thereunder.
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(b) The Trustee shall transmit to the Holders of each series, as
provided in subsection (c) of this Section, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee, as such,
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of this Indenture) for the reimbursement of which
it claims or may claim a lien or charge, prior to that of the Securities of
such series, on property or funds held or collected by it as Trustee and which
it has not previously reported pursuant to this subsection (b), except that the
Trustee shall not be required (but may elect) to report such advances if such
advances remaining unpaid at any time aggregate 10% or less of the principal
amount of the Securities of such series outstanding at such time, such report
to be transmitted within 90 days after such time.
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(c) Reports pursuant to this Section shall be transmitted by mail to
all Holders of Securities, as the names and addresses of such Holders appear
upon the Security Register;
(d) A copy of each such report shall, at the time of such
transmission to the Holders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange, if any, upon which the Securities of any
series are listed and also with the Commission. The Issuer agrees to notify
the Trustee when and as the Securities of such series become admitted to
trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any
series, wherever used herein, means each of the following events which shall
have occurred and be continuing (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due and
payable, (whether or not payment is prohibited by the provisions of
Article 12 hereof), and continuance of such default for a period of 30
days; provided, however, that if the Issuer is permitted by the terms of
the Securities of such series to defer the payment in question, the date
on which such payment is due and payable shall be the date on which the
Issuer is required to make payment following such deferral, if such
deferral has been elected pursuant to the terms of the Securities; or
(b) default in the payment of all or any part of the principal of
the Securities of such series as and when the same shall become due and
payable (whether or not payment is prohibited by the provisions of Article
12 hereof), whether at Maturity, upon purchase by the Issuer at the option
of the Holder, upon any redemption, by declaration or otherwise; or
(c) default in the deposit or payment of any sinking fund or
analogous payment (whether or not
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payment is prohibited by the provisions of Article 12 hereof) for the
benefit of the Securities of such series as and when the same shall become
due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the
Securities of such series or in this Indenture contained (other than a
covenant or agreement expressly included herein solely for the benefit of
Securities of other series) for a period of 60 days after the date on
which written notice specifying such failure, stating that such notice is
a "Notice of Default" hereunder and demanding that the Issuer remedy the
same, shall have been given by registered or certified mail, return
receipt requested, to the Issuer by the Trustee, or to the Issuer and the
Trustee by the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities of all series affected thereby; or
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, adjudging the Issuer a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Issuer
under any applicable law, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer or
for any substantial part of the property of the Issuer, or ordering the
winding up or liquidation of the affairs of the Issuer, and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(f) the Issuer shall commence a voluntary case or proceeding under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or any other case or proceeding to be adjudicated a
bankrupt or insolvent, or consent to the entry of a decree or order for
relief in an involuntary case under any such law, or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable law, or consent to the filing of such petition
or to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Issuer or for any substantial part of the property of the Issuer, or
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make any general assignment for the benefit of creditors, or the notice by
it in writing of its inability to pay its debts generally as they become
due, or the taking of any corporate action by the Issuer in furtherance of
any such action; or
(i) in the event Securities are issued to a Consumers Trust or the
trustee of such trust of the Company in connection with the issuance of
Trust Securities by such trust, such trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) the distribution of Securities to
holders of Trust Securities in liquidation of their interests in such
trust, (ii) the redemption of all outstanding Trust Securities of such
trust, and (iii) mergers, consolidations or amalgamations, each as
permitted by the Declaration of such trust;
then, unless the principal of all the Securities shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if given by
such Holders), may declare the entire principal of all the Securities of such
series then Outstanding and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing paragraph, however, is subject to the condition that
if, at any time after the principal of the Securities of one or more series
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series and the principal of all Securities of such series
which shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the same rate as
the rate of interest specified in the Securities of such series, to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of negligence or bad faith, and if any and all
Events of Default under this Indenture with respect to such series, other than
the non-payment of the principal of Securities of such series which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein - then, and in every such case, the Holders of a majority in
aggregate principal amount of all the Securities of
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such affected series then Outstanding by written notice to the Issuer and to
the Trustee, may direct the Trustee to waive all defaults with respect to such
series and rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether at Maturity,
upon redemption, by declaration or otherwise -- then, upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall have become due
and payable on all Securities of such series for principal or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the
rate of interest specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses and liabilities incurred by
such parties, and all advances made by the Trustee except as a result of its
negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of such series to the Holders,
whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Issuer or other obligor upon the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities of such series,
wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities of any series under Title 11 of the
United States Code or any other applicable
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Federal or state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor, or in case of
any other comparable judicial proceedings relative to the Issuer or such other
obligor, or to the creditors or property of the Issuer or such other obligor,
the Trustee, irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of the
principal and interest owing and unpaid in respect of the Securities of
each series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and its
agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or such other obligor, or
to the creditors or property of the Issuer or such other obligor;
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of each series in any election of
a trustee or a standby trustee in arrangement, reorganization, liquidation
or other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings; and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, and its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except, in each case, as a result of negligence or bad faith.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities of any series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series may be prosecuted and enforced by the
Trustee without the possession of any of the Securities of such series or the
production thereof at any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee
and its agents, attorneys and counsel, shall be for the ratable benefit of the
Holders of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which action was taken, and it shall
not be necessary to make any Holders of such Securities parties to any such
proceedings.
Section 5.3 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities in respect of which
moneys have been collected and stamping (or otherwise noting) thereon the
payment, and upon surrender thereof if fully paid, or issuing Securities of the
same series in reduced principal amounts in exchange for the presented
Securities if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection applicable
to such series, including reasonable compensation to the Trustee and its
agents, attorneys and counsel and of all expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of
negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and
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payable, to the payment of interest, if any, on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee and to the extent permitted by law) upon the
overdue installments of interest at the same rate as the rate of interest
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and be then
due and payable, to the payment of the whole amount then owing and unpaid
upon all the Securities of such series for principal and interest, if any,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
law) upon overdue installments of interest at the same rate as the rate of
interest specified in the Securities of such series; and in case such
moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such
principal and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of interest
over any other installment of interest, or of any Security of such series
over any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other Person lawfully entitled thereto.
Section 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 5.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee or any Holder shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any
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reason, or shall have been determined adversely to the Trustee or to such
Holder, then, and in every such case, the Issuer, the Trustee and the Holders
shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Issuer, the Trustee and the Holders
shall continue as though no such proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders. No Holder of
any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of each
affected series then Outstanding (determined as provided herein and voting as
one class) shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holder of Securities or to obtain or seek to obtain priority over
or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the affected series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Section 5.7 Unconditional Right of Securityholders to Receive
Principal and Interest and to Institute Certain Suits. Notwithstanding any
other provision in this Indenture and any provision of any Security, the right
of any Holder of any Security to receive payment of the principal of and
interest, if any, on such Security on or after the respective due dates
expressed in such Security or any date fixed for redemption, or to institute
suit for the enforcement of any such payment on or
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after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every right and power given by this
Indenture or by law to the Trustee or to the Holders of Securities may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders of Securities, as the case may be.
Section 5.9 Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series
affected at the time Outstanding (determined as provided herein and voting as
one class) shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee with respect to the
Securities of such affected series by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and provided further that (subject to the provisions of
Section 6.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors, its executive committee or a trust
committee of directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in
personal liability or that the actions or forbearances specified in or pursuant
to such direction would be unduly prejudicial to the interests of Holders of
the Securities of all affected series not joining in the giving of said
direction, it being understood that (subject to Section 6.1) the Trustee shall
have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
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Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
Section 5.10 Waiver of Past Defaults. Prior to the declaration of
acceleration of the Maturity of any Securities as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which a default or an Event of
Default shall have occurred and be continuing (determined as provided herein
and voting as one class) may on behalf of the Holders of all such affected
Securities waive any past default or Event of Default described in Section 5.1
and its consequences, except a default or an Event of Default (i) in the
payment of the principal of or interest, if any, on any Security of such
series, or (ii) in respect of a covenant or provision hereof or of any Security
which cannot be modified or amended without the consent of the Holder of each
Security affected. In the case of any such waiver, the Issuer, the Trustee and
the Holders of all such affected Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within 90 days after the occurrence
of a default with respect to the Securities of any series, give notice of all
defaults with respect to such series known to the Trustee to all Holders of
Securities of such series in the manner and to the extent provided in Section
4.4(c), unless in each case such defaults shall have been cured before the
mailing or publication of such notice (the term "default" for the purpose of
this Article being hereby defined to mean any event or condition which is, or
with notice or lapse of time or both would become, an Event of Default);
provided that, except in the case of default in the payment of the principal of
or the interest, if any, on any of the Securities of such series, or in the
payment of any sinking fund installment or analogous payment on such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
or trustees and/or Responsible Officers of
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the Trustee in good faith determines that the withholding of such notice is in
the interests of the Securityholders of such series.
Section 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his or her acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the case
of any suit relating to or arising under clause (d) or (g) of section 5.1 (if
the suit relates to the Securities of more than one but less than all series),
10% in aggregate principal amount of the Securities then Outstanding and
affected thereby, or, in the case of any suit relating to or arising under
clause (d) or (g) (if the suit relates to all the Securities then Outstanding),
10% in aggregate principal amount of all Securities then Outstanding, or to any
suit instituted by any Securityholder for the enforcement of the payment of the
principal of or the interest on any Security on or after the due date expressed
in such Security or any date fixed for redemption.
Section 5.13 Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. The Trustee, prior to
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the occurrence of an Event of Default with respect to the Securities of a
particular series and after the curing or waiving of all Events of Default
which may have occurred with respect to such series, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
In case an Event of Default with respect to the Securities of a particular
series has occurred (which has not been cured or waived), the Trustee shall
exercise with respect to such series such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default which may have occurred with respect to such series:
(i) the duties and obligations of the Trustee with respect to
the Securities of such series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall
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be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with an
appropriate direction of the Holders pursuant to Section 5.9 relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
Section 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, security or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee
by a copy thereof certified by the secretary or an assistant secretary of
the Issuer;
(c) the Trustee may consult with counsel and any advice or any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
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Indenture, unless such Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities which
might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, security or
other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of the
Securities of all affected series then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Issuer or, if paid by the
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
Section 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities, other than as to the due execution and delivery of the Indenture by
the Trustee. The
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Trustee shall not be accountable for the use or application by the Issuer of
any of the Securities or of the proceeds thereof.
Section 6.4 Trustee and Agents May Hold Securities; Collections,
etc. The Trustee or any agent of the Issuer or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities with the
same rights it would have if it were not the Trustee or such agent and, subject
to Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
Section 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4, all moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Issuer covenants and agrees to pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
agents and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Issuer also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and the
Trustee's duties hereunder, including the costs and expenses of defending
itself against or investigating any claim of liability in the premises. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture. Such additional indebtedness
shall not be deemed to be Subordinated Securities, as that term is defined in
Section 12.1, and shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities,
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and the Securities are hereby subordinated to such senior claim. When the
Trustee incurs expenses after the occurrence of a default, the expenses are
intended to constitute expenses of administration under any bankruptcy law.
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture in reliance thereon.
Section 6.8 Qualification of Trustee; Conflicting Interests. If the
Trustee has or shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in
all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
Section 6.9 Persons Eligible for Appointment as Trustee. There
shall at all times be a Trustee hereunder which shall be a corporation
organized and doing business under the laws of the United States of America or
of any State thereof or the District of Columbia having a combined capital and
surplus of at least $5,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
Federal, State or District of Columbia authority. Such corporation shall have
its principal place of business in The City of New York, if there be such a
corporation in such location willing to act upon reasonable and customary terms
and conditions. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
Section 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign and be discharged of
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the trusts created by this Indenture by giving written notice of resignation to
the Issuer and by mailing notice of such resignation to the Holders of the then
Outstanding Securities at their addresses as they shall appear on the Security
registry books. Upon receiving such notice of resignation, the Issuer shall
promptly appoint a successor trustee or trustees with respect to the applicable
series by written instrument, in duplicate, executed by authority of the Board
of Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any series and shall have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Holder who has
been a bona fide Holder of a Security or Securities of such series for at least
six months may, subject to the provisions of Section 5.12, on behalf of such
Holder and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
6.8 after written request therefor by the Issuer or by any Holder who has
been a bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer or by any Holder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
Securities of any or all series, as appropriate, and appoint a successor trustee
for such series by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee or trustees, or,
subject to the provisions of Section 5.12, any
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Holder who has been a bona fide Holder of a Security or Securities of such
series for at least six months may, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 7.1 of the action in that regard taken by the Holders.
(d) Any resignation or removal of the Trustee and any appointment of
a successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
(e) Except in the case of a default in the payment of the principal
of or interest on any Security, or in the payment of any sinking or purchase
fund installment, the Trustee shall not be required to resign as provided by
Section 6.8 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that:
(i) the default under this Indenture may be cured or waived during a
reasonable period and under the procedures described in such application;
and
(ii) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of the Securityholders.
Section 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, trusts and duties of its predecessor hereunder, with like
effect as if originally named as trustee hereunder; but, nevertheless, on the
written request of the Issuer or of the successor Trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over and transfer to the successor Trustee all moneys and property at the
time held by it hereunder and shall execute, acknowledge and deliver an
instrument transferring to such successor Trustee all such rights, powers,
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trusts and duties. Upon request of any such successor Trustee, the Issuer
shall execute and acknowledge any and all instruments in writing for more fully
and certainly vesting in and confirming to such successor Trustee all such
money, property, rights, powers and trusts. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such Trustee for the benefit of such applicable series to secure any amounts
then due it pursuant to the provisions of Section 6.6.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.8 and eligible under the provisions
of Section 6.9.
Upon acceptance of appointment by any successor Trustee as provided
in this Section, the Issuer shall give notice thereof to the Holders of
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security registry books. If the acceptance of appointment
is substantially contemporaneous with the resignation, then the notice called
for by the preceding sentence may be combined with the notice called for by
Section 6.10. If the Issuer fails to give such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be given at the expense of the Issuer.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 6.8 and eligible
under the provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time of such succession to the Trustee any of the
Securities of any series shall have been authenticated but not delivered, any
such successor Trustee may adopt the certificate of authentication of any
predecessor Trustee and deliver the Securities so authenticated; and, in case
at that time any of the Securities of any series shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of such successor Trustee;
and in all such cases such certificate of authentication shall have the full
force which is anywhere in the Securities of such series or in this Indenture
provided that the certificate of authentication of the Trustee
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shall have; provided that the right to adopt the certification of any
predecessor Trustee or to authenticate Securities of any series in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 6.13 Preferential Collection of Claims Against the Issuer.
The Trustee shall comply with its obligations under the applicable provisions
of Section 311 of the Trust Indenture Act.
Section 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of, but
subject to the direction of, the Trustee to authenticate and deliver Securities
of such series, including Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 2.9. Securities of such
series so authenticated and delivered shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee. Whenever reference is made in this Indenture to
the authentication and delivery of Securities of any series by the Trustee or
to the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a certificate of authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State thereof
or of the District of Columbia authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $5,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of any Authenticating Agent, shall be the successor to
such Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease to be
eligible hereunder shall, resign by giving written notice of resignation to the
Trustee and to the Issuer.
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The Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice thereof to such Authenticating Agent and the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall upon receipt
of an Issuer Order appoint a successor Authenticating Agent and shall provide
notice of such appointment to all Holders of Securities affected thereby in the
manner and to the extent provided in Section 6.11 with respect to the
appointment of a successor trustee. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in aggregate principal amount of the Holders of one or more series
of Securities may be evidenced (i) by one or more instruments of substantially
similar tenor signed by such specified percentage of Holders in person or by an
agent or proxy duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee; (ii) by the record of such specified
percentage of Holders voting in favor thereof at any meeting of such Holders
duly called and held by the Trustee; and (iii) by a combination of such
instrument or instruments and any such record of a meeting.
Section 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Holder or his agent or proxy and proof of the holding by any Person of any of
the Securities of any series shall be sufficient if made in the following
manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved by the certificate of any notary public or other
officer of
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any jurisdiction authorized to take acknowledgments of deeds or administer
oaths that the Person executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient proof of the
authority of the Person executing the same.
(b) The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar.
Section 7.3 Holders to Be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security of any series shall be registered upon the
Security Register for such series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and, subject to the provisions of Section 2.7
of this Indenture, interest, if any, on such Security and for all other
purposes; and none of the Issuer, the Trustee and any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such Person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such Global Security, and such Depository may be treated by the
Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depository and such
holders of beneficial interests, the operation of customary practices governing
the exercise of the rights of the Depository as holder of any Security.
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of one or more series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or
any other obligor on
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the Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purposes of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon such Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on such Securities. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purposes of any such
determination.
Section 7.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 7.1,
of the taking of any action by the Holders of the requisite percentage in
aggregate principal amount of the Securities of one or more series, as the case
may be, specified in this Indenture in connection with such action, any Holder
of a Security the serial number of which is shown by the evidence to be
included among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of ownership as provided in Section 7.2, revoke such
action so far as concerns such Security. Except as aforesaid, any such action
taken by the Holder of any Security of any series shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Security and of any Securities of such series issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the requisite percentage in aggregate
principal amount of the Securities of one or more series, as the case may be,
specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities of such series.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of the execution thereof) for one
or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article Nine;
(c) to add to the covenants of the Issuer for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) such further covenants, restrictions, conditions or provisions as
the Issuer and the Trustee shall consider to be for the protection of the
Holders of Securities of any series, and to make the occurrence, or the
occurrence and continuance, of a default in complying with any such
additional covenant, restriction, condition or provision an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; in respect of any such
additional covenant, restriction, condition or provision, such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the
Trustee upon such an Event of Default or may limit the right of the
Holders of a majority in aggregate principal amount of the Securities of
such series to waive such an Event of Default;
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(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions as the Issuer may
deem necessary or desirable, with respect to matters or questions arising
under this Indenture, provided that no such action shall adversely affect
the interests of the Holders of the Securities of any series appertaining
thereto;
(e) to establish the form and terms of the Securities of any series
as permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to add
to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by
more than one trustee, all as provided in Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property or assets
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
Section 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series at the time Outstanding affected by such supplemental indenture (voting
as one class), the Issuer, when authorized by a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this
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Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such series; provided that no
such supplemental indenture shall (a) change the time of payment of the
principal, or any installment of the principal, of any Security or reduce the
principal amount thereof, or reduce the rate or change the time of payment of
interest, if any, thereon, or reduce any amount payable on the redemption
thereof, or make the principal thereof or the interest thereon payable in any
coin or currency other than that provided in such Security in accordance with
the terms thereof or impair or affect the right to institute suit for the
payment thereof when due, or, if such Security shall so provide, any right of
repayment at the option of the Holder, in each case without the consent of the
Holder of each Security so affected, (b) reduce the percentage in principal
amount of the Outstanding Securities of the affected series, the consent of
whose Holders is required for any such supplemental indenture or for any waiver
provided for in this Indenture, without the consent of the Holders of each
Security so affected or (c) without the consent of the Holders of each Security
so affected, modify any of the provisions of this Section or Section 5.10,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes
in this Section, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 8.1(f).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more series of Securities, or which modifies the rights
of the Holders of Securities of such series appertaining to such Securities
with respect to such covenant or provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a Board Resolution
complying with the first paragraph of this Section and evidence of the consent
of the Holders of the Securities as aforesaid and such other documents, if any,
as may be required by Section 7.1, the Trustee shall join with the Issuer in
the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any
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proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof to the Holders of then Outstanding Securities of each
series affected thereby, by mailing a notice thereof by first-class mail to
such Holders at their addresses as they shall appear on the Security Register,
and in each case such notice shall set forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to give such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article complies with the applicable
provisions of this Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee as to any matter
provided for by such supplemental indenture. If the Issuer or the Trustee
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared and
executed by the Issuer, authenticated by the Trustee and delivered in exchange
for the Securities of such series then Outstanding.
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ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Covenant of Issuer Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. Nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation of the
Issuer with, or merger of the Issuer into, any other corporation or
corporations (whether or not affiliated with the Issuer), or successive
consolidations or mergers to which the Issuer or its successor or successors
shall be a party or parties, shall prevent any sale, lease or conveyance of the
property of the Issuer as an entirety or substantially as an entirety, shall
prevent any consolidation of any Person with, or the merger of any Person into,
the Issuer or shall prevent any sale, lease or conveyance of the property of
any Person as an entirety or substantially as an entirety to the Issuer;
provided, that, and the Issuer hereby covenants and agrees, upon any such
consolidation, merger, sale, lease or conveyance, the due and punctual payment
of the principal of and interest, if any, on all the Securities, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Issuer, shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee by the corporation
formed by such consolidation, or into which the Issuer shall have been merged,
or which shall have acquired such property; provided, further, that the
corporation formed by such consolidation or into which the Issuer merged or the
Person which acquired by conveyance or sale, or which leases, the properties
and assets of the Issuer as an entirety or substantially as an entirety shall
be a corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia; provided, further, that
immediately after giving effect to such transaction, and treating any
indebtedness which becomes an obligation of the Issuer or a Subsidiary as a
result of such transaction as having been incurred by the Issuer or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; provided, further, if, as a result of
any such consolidation or merger or such conveyance, transfer or lease,
properties or assets of the Issuer would become subject to a mortgage, pledge,
lien, security interest or other encumbrance which would not be permitted by
this Indenture, the Issuer or such successor corporation or Person, as the case
may be, shall take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness secured
thereby.
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Section 9.2 Successor Corporation Substituted for Issuer. In case
of any consolidation, merger, sale, lease or conveyance referred to in, and in
accordance with, Section 9.1, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Issuer, with the same effect as if it had been named herein as Issuer.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such succession,
any or all of the Securities issuable hereunder which theretofore shall not
have been signed by the Issuer and delivered to the Trustee; and, upon the
order of such successor corporation, instead of the Issuer, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All of
the Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter issued
in accordance with the terms of this indenture as though all of such Securities
had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease), the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
Section 9.3 Opinion of Counsel Delivered to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease
or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture and that
all conditions precedent herein provided for relating to such transactions have
been complied with.
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ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture. (A) If at
any time (a) the Issuer shall have paid or caused to be paid the principal of,
and interest, if any, on all the Securities of each series theretofore
authenticated, (other than Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.9), in accordance
with the terms of this Indenture and such Securities or (b) as to Securities
not so paid, the Issuer shall have delivered to the Trustee for cancellation
all Securities of each series theretofore authenticated (other than any
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.9) or (c) as to Securities not
so paid or delivered for cancellation, (i) all the Securities of such series
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds money in an amount (other than
moneys repaid by the Trustee or any paying agent to the Issuer in accordance
with Section 10.4) or Government Obligations, maturing as to principal and
interest at such times and in such amounts as will insure the availability of
money, or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal and
interest, if any, on all Securities of such series on each date that such
principal or interest, if any, is due and payable and (B) any mandatory sinking
fund or analogous payments on the dates on which such payments are due and
payable in accordance with the terms of this Indenture and the Securities of
such series; and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer then this Indenture shall
cease to be of further effect (except as to (i) rights of registration of
transfer and exchange of Securities, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) the rights of Holders of Securities
to receive payments of principal thereof, and interest, if any, thereon, upon
the original stated due dates therefor or any date of redemption (but not upon
acceleration), and remaining rights of such Holders to receive mandatory
sinking fund or analogous payments, if any, (iv) the rights, obligations,
duties and immunities of the Trustee hereunder, (v) the rights of Holders of
Securities as beneficiaries hereof with respect to the property so deposited
with the Trustee and payable to all or any of them and (vi) the
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obligations of the Issuer under Section 3.2) and the Trustee, on demand of the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with, and at
the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction and discharge of this Indenture, provided that
the rights of Holders of the Securities to receive amounts in respect of
principal of and interest on the Securities held by them shall not be delayed
longer than required by then applicable mandatory rules or policies of any
national securities exchange upon which the Securities are listed. The Issuer
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in the Board Resolution,
Officers' Certificate or supplemental indenture relating thereto provided
pursuant to Section 2.3. In addition to discharge of this Indenture pursuant
to the next preceding paragraph (A) the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such series on the
91st day after the date of making the deposit referred to in clause (a), and
the provisions of this Indenture with respect to the Securities of such series
shall no longer be in effect (except as to (i) rights of registration of
transfer and exchange of Securities of such series, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (iii) the rights of
Holders of Securities of such series appertaining thereto to receive payments
of principal thereof and interest, if any, thereon, upon the original stated
due dates therefor or any date of redemption (but not upon acceleration), and
remaining rights of such Holders to receive mandatory sinking fund or analogous
payments, if any, solely from the trust fund referred to in subparagraph (a)
below, (iv) the rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
and payable to all or any of them and (vi) the obligations of the Issuer under
Section 3.2), and the Trustee, at the cost and expense of the Issuer, shall, at
the Issuer's request, execute proper instruments acknowledging the same, if:
(a) the Issuer shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or (ii)
Government Obligations, maturing as to principal and interest at such
times and in such
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amounts as will insure the availability of money, or (iii) a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and interest,
if any, on all Securities of such series on each date that such principal
or interest, if any, is due and payable and (B) any mandatory sinking fund
or analogous payments on the dates on which such payments are due and
payable in accordance with the terms of this Indenture and the Securities
of such series;
(b) no Event of Default or event which, with notice or lapse of time
or both, would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit or at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such deposit shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Issuer is a party or by which it is bound;
(d) such deposit shall not cause any Securities of such series then
listed on any national securities exchange registered under the Securities
Exchange Act of 1934, as amended, to be delisted;
(e) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) if such deposits shall include Government
Obligations in respect of any government other than the United States of
America, such deposit shall not result in the Issuer, the Trustee or such
trust constituting an "investment company" under the Investment Company
Act of 1940, as amended, and (ii) the Holders of the Securities of such
series then Outstanding will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred; and
(f) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance
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contemplated by this paragraph have been complied with.
Section 10.2 Application by Trustee of Funds Deposited for Payment
of Securities. Subject to Section 10.4, all moneys and Government Obligations
deposited with the Trustee (or other trustee), and all money received by the
Trustee in respect of Government Obligations deposited with the Trustee,
pursuant to Section 10.1 in respect of the Outstanding Securities of a
particular series shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer acting as its
own paying agent), to the Holders of such Securities of all sums due and to
become due thereon for principal and interest, if any; but such money need not
be segregated from other funds except to the extent required by law.
Section 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to the Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
Section 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest, if any, on
any Security of any series and not applied but remaining unclaimed for three
years after the date upon which such principal or interest shall have become
due and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Issuer by the Trustee or such
paying agent, and any Holder of the Securities of such series shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being required
to make any such repayment with respect to moneys deposited with it for any
payment shall at the expense of the Issuer, mail by first-class mail to Holders
of such Securities at their addresses as they shall appear on the Security
Register for the Securities of such series, notice that such moneys remain and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing any unclaimed balance of such moneys then remaining
will be repaid to the Issuer.
Section 10.5 Indemnity for Government Obligations. The Issuer shall
pay and indemnify the Trustee against any tax,
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fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 10.1 or the principal or interest received in
respect of such Government Obligations, other than any such tax, fee or other
charge which by law is for the account of the Holders of the Securities for
whose benefit such Government Obligations are held.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any Securities of a series which have
the benefit of a sinking fund, except as otherwise specified as contemplated by
Section 2.3 for Securities of any series.
Section 11.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part shall be given by mailing notice of such redemption by first class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such Holders at their last addresses as they
shall appear upon the registry books for such Securities. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of any Security
of any series designated for redemption as a whole or in part, shall not affect
the validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify (a) the
principal amount of each Security of such series held by such Holder to be
redeemed, (b) the date fixed for redemption, (c) the redemption price, (d) that
such redemption is pursuant to the mandatory or optional sinking or other
analogous fund, or both, if such be the case, (e) that interest accrued to the
date fixed for redemption will be paid as specified in such notice and (f) that
on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Security is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in authorized denominations for an aggregate principal amount equal
to the unredeemed portion thereof will be issued.
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The notice of redemption of Securities of any series to be redeemed
at the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the redemption date all the
Securities of any series so called for redemption at the applicable redemption
price, together with accrued interest to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 60 days prior to the date fixed for
redemption an Officers' Certificate stating such date, the aggregate principal
amount of Securities of each series to be redeemed and that no Events of
Default with respect to the Securities of such series have occurred (which have
not been waived or cured). In case of a redemption at the option of the Issuer
prior to the expiration of any restriction on such redemption, the Issuer shall
deliver to the Trustee, prior to the giving of any notice of redemption to
Holders pursuant to this Section, an Officers' Certificate stating that such
restriction has been complied with. If less than all the Securities of any
series are to be redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Securities of such series to be redeemed in whole or
in part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
Section 11.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as provided in Section 11.2, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the applicable redemption price, together with interest accrued
to said date) interest on the Securities or portions of Securities so called
for redemption shall cease to accrue and, except as provided in Sections 6.5
and 10.4, such Securities shall cease
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from and after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the applicable
redemption price thereof and unpaid interest to the date fixed for redemption.
On presentation and surrender of such Securities at a place of payment
specified in said notice, redemption, such Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 11.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 60 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer or (b) an entity specifically identified in such Officers'
Certificate as an Affiliate of the Issuer.
Section 11.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or
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otherwise acquired (except as aforesaid) by the Issuer and delivered to the
Trustee for cancellation pursuant to Section 2.10, (b) receive credit for
optional sinking fund payments (not previously so credited) made pursuant to
this Section or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Issuer through any optional redemption
provision contained in the terms of such series. Securities so delivered or
credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section 14.5)
(a) specifying the portion of the mandatory sinking fund payment due on such
date to be satisfied by payment of cash and the portion to be satisfied by
credit of Securities of such series and the basis for such credit, (b) stating
that none of the Securities of such series to be so credited has theretofore
been so credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred and are continuing
(which have not been waived or cured) and (d) stating whether or not the Issuer
intends to exercise its right to make an optional sinking fund payment on such
date with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
so credited and required to be delivered to the Trustee in order for the Issuer
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.10 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable, and upon its receipt by the Trustee the Issuer shall
become unconditionally obligated to make all the cash payments or other
deliveries therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Issuer, on or before any such 60th
day, to deliver such Officers' Certificate and securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such 60th day, the irrevocable election of the Issuer that (i) the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) the
Issuer will make no optional sinking fund payment with respect to such series
on such date as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any
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preceding sinking fund payments made in cash shall exceed $50,000 and if the
Issuer shall so request with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the applicable sinking
fund redemption price, together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 or less and the Issuer makes no
such request, then such amount shall be carried over until a sum in excess of
$50,000 is available. The Trustee shall select, in the manner provided in
Section 11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in
an Officers' Certificate delivered to the Trustee at least 40 days prior to the
sinking fund payment date as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such Officers' Certificate as an Affiliate of the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing), shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 11.2 (and with the effect provided in Section 11.3) for the
redemption of Securities of such series in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of a particular
series (or earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series, shall be
applied, together with other moneys, if necessary, sufficient for the purpose,
to the payment of the principal of and interest on the Securities of such
series at maturity.
Unless otherwise provided for, on or before each sinking fund payment
date, the Issuer shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed Securities of
any series with sinking fund moneys or give any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of any
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Event of Default with respect to such series except that, if notice of
redemption of any Securities of such series shall theretofore have been given,
the Trustee shall redeem or cause to be redeemed such Securities, provided that
the Trustee or one or more paying agents shall have received from the Issuer a
sum sufficient for such redemption. Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such Event of Default, be deemed to have been collected under
Article Five and held for the payment of all Securities of such series. In
case such Event of Default shall have been waived as provided in Section 5.10
or such Event of Default cured on or before the 60th day preceding any sinking
fund payment date, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of Securities of such series.
ARTICLE TWELVE
SUBORDINATION
Section 12.1 Applicability of Article; Securities Subordinated to
Senior Indebtedness. (a) This Article Twelve shall apply only to the
Securities of any series which, pursuant to Section 2.3, are expressly made
subject to this Article. Such Securities are referred to in this Article
Twelve as "Subordinated Securities."
(b) The Issuer covenants and agrees, and each Holder of Subordinated
Securities by his acceptance thereof likewise covenants and agrees, that the
indebtedness represented by the Subordinated Securities and the payment of the
principal and interest, if any, on the Subordinated Securities is subordinated
and subject in right, to the extent and in the manner provided in this Article,
to the prior payment in full of all Senior Indebtedness.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on the following, whether outstanding on the date hereof or thereafter
incurred, created or assumed: (i) indebtedness of the Issuer for money
borrowed by the Issuer (including purchase money obligations or evidenced by
debentures (other than the Subordinated Securities), notes, bankers'
acceptances or other corporate debt securities, or similar instruments issued
by the Issuer); (ii) all capital lease obligations of Consumers; (iii) all
obligations of Consumers issued or assumed as the deferred purchase price of
property, all conditional sale obligations of Consumers and all obligations of
Consumers under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) obligations with
respect to letters of credit;
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(v) all indebtedness of others of the type referred to in the preceding clauses
(i) through (iv) assumed by or guaranteed in any manner by the Issuer or in
effect guaranteed by the Issuer; (vi) all obligations of the type referred to
in clauses (i) through (v) above of other persons secured by any lien on any
property or asset of Consumers (whether or not such obligation is assumed by
Consumers), except for (1) any such indebtedness that is by its terms
subordinated to or pari passu with the Subordinated Notes, as the case may be,
including all other debt securities, issued to any other trusts, partnerships
or other entities affiliated with Consumers which act as a financing vehicle of
Consumers in connection with the issuance of preferred securities by such
entity or other securities which rank pari passu with, or junior to, the
Preferred Securities, and (2) any indebtedness between or among Consumers and
its affiliates and/or (vii) renewals, extensions or refundings of any of the
indebtedness referred to in the preceding clauses unless, in the case of any
particular indebtedness, renewal, extension or refunding, under the express
provisions of the instrument creating or evidencing the same or the assumption
or guarantee of the same, or pursuant to which the same is outstanding such
indebtedness or such renewal, extension or refunding thereof is not superior in
right of payment to the Subordinated Securities.
This Article shall constitute a continuing obligation to all Persons
who, in reliance upon such provisions become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder
and they and/or each of them may enforce such provisions.
Section 12.2 Issuer Not to Make Payments with Respect to
Subordinated Securities in Certain Circumstances. (a) Upon the maturity of
any Senior Indebtedness by lapse of time, acceleration or otherwise, all
principal thereof and interest thereon shall first be paid in full, or such
payment duly provided for in cash in a manner satisfactory to the holders of
such Senior Indebtedness, before any payment is made on account of the
principal of, or interest on, Subordinated Securities or to acquire any
Subordinated Securities or on account of any sinking fund provisions of any
Subordinated Securities (except payments made in capital stock of the Issuer or
in warrants, rights or options to purchase or acquire capital stock of the
Issuer, sinking fund payments made in Subordinated Securities acquired by the
Issuer before the maturity of such Senior Indebtedness, and payments made
through the exchange of other debt obligations of the Issuer for such
Subordinated Securities in accordance with the terms of such Subordinated
Securities, provided that such debt obligations are subordinated to Senior
Indebtedness at least to the extent that the
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Subordinated Securities for which they are exchanged are so subordinated
pursuant to this Article Twelve).
(b) Upon the happening and during the continuation of any default in
payment of the principal of, or interest on, any Senior Indebtedness when the
same becomes due and payable or in the event any judicial proceeding shall be
pending with respect to any such default, then, unless and until such default
shall have been cured or waived or shall have ceased to exist, no payment shall
be made by the Issuer with respect to the principal of, or interest on,
Subordinated Securities or to acquire any Subordinated Securities or on account
of any sinking fund provisions of Subordinated Securities (except payments made
in capital stock of the Issuer or in warrants, rights, or options to purchase
or acquire capital stock of the Issuer, sinking fund payments made in
Subordinated Securities acquired by the Issuer before such default and notice
thereof, and payments made through the exchange of other debt obligations of
the Issuer for such Subordinated Securities in accordance with the terms of
such Subordinated Securities, provided that such debt obligations are
subordinated to Senior Indebtedness at least to the extent that the
Subordinated Securities for which they are exchanged are so subordinated
pursuant to this Article Twelve).
(c) In the event that, notwithstanding the provisions of this Section
12.2, the Issuer shall make any payment to the Trustee on account of the
principal of or interest on Subordinated Securities, or on account of any
sinking fund provisions of such Securities, after the maturity of any Senior
Indebtedness as described in Section 12.2(a) above or after the happening of a
default in payment of the principal of or interest on any Senior Indebtedness
as described in Section 12.2(b) above, then, unless and until all Senior
Indebtedness which shall have matured, and all interest thereon, shall have
been paid in full (or the declaration of acceleration thereof shall have been
rescinded or annulled), or such default shall have been cured or waived or
shall have ceased to exist, such payment (subject to the provisions of Sections
12.6 and 12.7) shall be held by the Trustee, in trust for the benefit of, and
shall be paid forthwith over and delivered to, the holders of such Senior
Indebtedness (pro rata as to each of such holders on the basis of the
respective amounts of Senior Indebtedness held by them) or their representative
or the trustee under the indenture or other agreement (if any) pursuant to
which such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all such Senior
Indebtedness remaining unpaid to the extent necessary to pay the same in full
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness. The Issuer shall
give prompt written notice to the Trustee of any default in the payment of
principal of or interest on any Senior Indebtedness.
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Section 12.3 Subordinated Securities Subordinated to Prior Payment
of All Senior Indebtedness on Dissolution, Liquidation or Reorganization of
Issuer. Upon any distribution of assets of the Issuer in any dissolution,
winding up, liquidation or reorganization of the Issuer (whether voluntary or
involuntary, in bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or otherwise):
(a) the holders of all Senior Indebtedness shall first be entitled
to receive payments in full of the principal thereof and interest due
thereon, or provision shall be made for such payment, before the Holders
of Subordinated Securities are entitled to receive any payment on account
of the principal of or interest on such Securities;
(b) any payment or distribution of assets of the Issuer of any kind
or character, whether in cash, property or securities (other than
securities of the Issuer as reorganized or readjusted or securities of the
Issuer or any other corporation provided for by a plan or reorganization
or readjustment the payment of which is subordinate, at least to the
extent provided in this Article Twelve with respect to Subordinated
Securities, to the payment in full without diminution or modification by
such plan of all Senior Indebtedness), to which the Holders of
Subordinated Securities or the Trustee on behalf of the Holders of
Subordinated Securities would be entitled except for the provisions of
this Article Twelve shall be paid or delivered by the liquidating trustee
or agent or other person making such payment or distribution directly to
the holders of Senior Indebtedness or their representative, or to the
trustee under any indenture under which Senior Indebtedness may have been
issued (pro rata as to each such holder, representative or trustee on the
basis of the respective amounts of unpaid Senior Indebtedness held or
represented by each), to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution or provision thereof to the holders of
such Senior Indebtedness; and
(c) in the event that notwithstanding the foregoing provisions of
this Section 12.3, any payment or distribution of assets of the Issuer of
any kind or character, whether in cash, property or securities (other than
securities of the Issuer as reorganized or readjusted or securities of the
Issuer or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is
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subordinate, at least to the extent provided in this Article Twelve with
respect to Subordinated Securities, to the payment in full without
diminution or modification by such plan of all Senior Indebtedness), shall
be received by the Trustee or the Holders of the Subordinated Securities
on account of principal of or interest on the Subordinated Securities
before all Senior Indebtedness is paid in full, or effective provision
made for its payment, such payment or distribution (subject to the
provisions of Section 12.6 and 12.7) shall be received and held in trust
for and shall be paid over to the holders of the Senior Indebtedness
remaining unpaid or unprovided for or their representative, or to the
trustee under any indenture under which such Senior Indebtedness may have
been issued (pro rata as provided in subsection (b) above), for
application to the payment of such Senior Indebtedness until all such
Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution or provision therefor to the
holders of such Senior Indebtedness.
The Issuer shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Issuer.
The consolidation of the Issuer with, or the merger of the Issuer
into, another corporation or the liquidation or dissolution of the Issuer
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Nine hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 12.3 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated such in
Article Nine.
Section 12.4 Holders of Subordinated Securities to be Subrogated to
Right of Holders of Senior Indebtedness. Subject to the payment in full of all
Senior Indebtedness, the Holders of Subordinated Securities shall be subrogated
to the rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Issuer applicable to the Senior Indebtedness
until all amounts owing on Subordinated Securities shall be paid in full, and
for the purposes of such subrogation no payments or distributions to the
holders of the Senior Indebtedness by or on behalf of the Issuer or by or on
behalf of the Holders of Subordinated Securities by virtue of this Article
Twelve which otherwise would have been made to the Holders of Subordinated
Securities shall, as between the Issuer, its creditors other than holders of
Senior Indebtedness and the Holders of Subordinated Securities, be deemed to be
payment by the Issuer to or on account of the Senior Indebtedness, it being
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understood that the provisions of this Article Twelve are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Subordinated Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Section 12.5 Obligation of the Issuer Unconditional. Nothing
contained in this Article Twelve or elsewhere in this Indenture or in any
Subordinated Security is intended to or shall impair, as among the Issuer, its
creditors other than holders of Senior Indebtedness and the Holders of
Subordinated Securities, the obligation of the Issuer, which is absolute and
unconditional, to pay to the Holders of Subordinated Securities the principal
of, and interest on, Subordinated Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders of Subordinated Securities and
creditors of the Issuer other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Subordinated Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Twelve of the holders of Senior Indebtedness in respect
of cash, property or securities of the Issuer received upon the exercise of any
such remedy. Upon any payment or distribution of assets of the Issuer referred
to in this Article Twelve, the Trustee and Holders of Subordinated Securities
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or, subject to the provisions of
Section 6.1 and 6.2, a certificate of the receiver, trustee in bankruptcy,
liquidating trustee or agent or other Person making such payment or
distribution to the Trustee or the Holders of Subordinated Securities, for the
purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Issuer, the amount thereof or payable thereon, the amount or amounts paid
or distributed therein and all other facts pertinent thereto or to this Article
Twelve.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in any Subordinated Security is intended to or shall affect the
obligation of the Issuer to make, or prevent the Issuer from making, at any
time except during the pendency of any dissolution, winding up, liquidation or
reorganization proceeding, and, except as provided in subsections (a) and (b)
of Section 12.2, payments at any time of the principal of, or interest on
Subordinated Securities.
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Section 12.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Issuer shall give prompt written notice to the Trustee
of any fact known to the Issuer which would prohibit the making of any payment
or distribution to or by the Trustee in respect of the Subordinated Securities.
Notwithstanding the provisions of this Article Twelve or any provision of this
Indenture, the Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment or
distribution to or by the Trustee, unless at least two Business Days prior to
the making of any such payment, the Trustee shall have received written notice
thereof from the Issuer or from one or more holders of Senior Indebtedness or
from any representative thereof or from any trustee therefor, together with
proof satisfactory to the Trustee of such holding of Senior Indebtedness or of
the authority of such representative or trustee; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Sections 6.1
and 6.2, shall be entitled to assume conclusively that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness (or a
representative or trustee on behalf of the holder) to establish that such
notice has been given by a holder of Senior Indebtedness (or a representative
of or trustee on behalf of any such holder). In the event that the Trustee
determines, in good faith, that further evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness to participate in
any payments or distribution pursuant of this Article Twelve, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, as to the
extent to which such Person is entitled to participate in such payment or
distribution, and as to other facts pertinent to the rights of such Person
under this Article Twelve, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment. The Trustee, however, shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
nothing in this Article Twelve shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
Section 12.7 Application by Trustee of Monies or Government
Obligations Deposited with It. Money or Government obligations deposited in
trust with the Trustee pursuant to and in accordance with Section 10.1 shall be
for the sole benefit of Securityholders and, to the extent allocated for the
payment of Subordinated Securities, shall not be subject to the subordination
provisions of this Article Twelve, if the same are deposited in trust prior to
the happening of any event specified in Section 12.2. Otherwise, any deposit
of monies or Government Obligations by the Issuer with the Trustee or any
paying agent
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(whether or not in trust) for the payment of the principal of, or interest on
any Subordinated Securities shall be subject to the provisions of Section 12.1,
12.2 and 12.3 except that, if prior to the date on which by the terms of this
Indenture any such monies may become payable for any purposes (including,
without limitation, the payment of the principal of, or the interest, if any,
on any Subordinated Security) the Trustee shall not have received with respect
to such monies the notice provided for in Section 12.6, then the Trustee or the
paying agent shall have full power and authority to receive such monies and
Government Obligations and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date. This Section 12.7 shall be construed
solely for the benefit of the Trustee and paying agent and, as to the first
sentence hereof, the Securityholders, and shall not otherwise effect the rights
of holders of Senior Indebtedness.
Section 12.8 Subordination Rights Not Impaired by Acts or Omissions
of Issuer or Holders of Senior Indebtedness. No rights of any present or
future holders of any Senior Indebtedness to enforce subordination as provided
herein shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer or by any act or failure to act, in
good faith, by any such holders or by any noncompliance by the Issuer with the
terms of this Indenture, regardless of any knowledge thereof which any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Issuer may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Subordinated Securities, without incurring responsibility to the
Holders of the Subordinated Securities and without impairing or releasing the
subordination provided in this Article Twelve or the obligations hereunder of
the Holders of the Subordinated Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
such Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any
manner for the collection for such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Issuer, as the case may be, and
any other Person.
Section 12.9 Securityholders Authorize Trustee to
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Effectuate Subordination of Securities. Each Holder of Subordinated Securities
by his acceptance thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Twelve and appoints the Trustee his
attorney-in-fact for such purpose, including in the event of any dissolution,
winding up, liquidation or reorganization of the Issuer (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise) the immediate filing of a claim for the unpaid balance
of his Subordinated Securities in the form required in said proceedings and
causing said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the
holders of Senior Indebtedness have the right to file and are hereby authorized
to file an appropriate claim for and on behalf of the Holders of said
Securities.
Section 12.10 Right of Trustee to Hold Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all of the rights set
forth in this Article Twelve in respect of any Senior Indebtedness at any time
held by it to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the Issuer, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Twelve, and no
implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of Sections 12.2 and 12.3,
the Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to Holders of Subordinated Securities, the Issuer or
any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article Twelve or otherwise.
Section 12.11 Article Twelve Not to Prevent Events of Defaults. The
failure to make a payment on account of principal, premium, if any, or interest
by reason of any provision in this Article Twelve shall not be construed as
preventing the occurrence of an Event of Default under Section 5.1.
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ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities appertaining
thereto by the Holders thereof and as part of the consideration for the issue
of the Securities appertaining thereto.
Section 13.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities. Nothing in this Indenture, in the Securities
expressed or implied, shall give or be construed to give to any Person other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities. Notwithstanding the foregoing, for so long as any
Trust Securities remain outstanding, the Issuer's obligations under this
Indenture will also be for the benefit of the holders of such Trust Securities,
and the Issuer acknowledges and agrees that such holders will be entitled to
enforce certain payment obligations under the Securities directly against the
Issuer to the extent provided in Sections 5(b) and 6(c) of Annex I of the
Declaration dated January __, 1996.
Section 13.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture made
by or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
Section 13.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice, direction, request or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or
by any Holder of Securities of any series or upon the Issuer shall be deemed to
have been sufficiently given or served by being deposited postage prepaid in
the United States mail, first- class mail (except as
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otherwise specifically provided herein), addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to Consumers Power Company,
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Secretary. Any
notice, direction, request or demand by the Issuer or any Holder of Securities
of any series or upon the Trustee shall be deemed to have been sufficiently
given or served by being deposited postage prepaid in the United States mail,
first-class mail (except as otherwise specifically provided herein), addressed
(until another address of the Trustee is filed by the Trustee with the Issuer)
to The Bank of New York, 000 Xxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice
required or permitted to be given or served by the Issuer or by the Trustee to
or upon any Holders of Securities of any series shall be deemed to have been
sufficiently given or served by being deposited in the United States mail,
first-class mail (except as otherwise specifically provided herein), addressed
at their addresses as they shall appear on the Security Register.
In any case where notice to the Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice when such notice is required to be given pursuant to any provision of
this Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 13.5 Officers' Certificates and Opinions of Counsel;
Statements to be Contained Therein. Except as otherwise expressly provided by
this Indenture, upon any application or demand by the Issuer to the Trustee to
take any action under any of the provisions of this Indenture, the Issuer shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
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Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than certificates provided
pursuant to Section 4.3(d) or Section 11.5) shall include (a) a statement that
the individual signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto, (b) a brief statement as
to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (c)
a statement that, in the opinion of such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
individual, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion of or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any such certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters, on information with respect to which
is in the possession of the Issuer, upon the certificate, statement or opinion
of or representations by an officer or officers of the Issuer, unless such
counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 13.6 Payments Due on Saturdays, Sundays and Holidays. If
the date of maturity of interest on or principal of
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the Securities of any series or the date fixed for redemption or repayment of
any such Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of such interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption or repayment, and no interest shall accrue for
the period from and after such date except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
Section 13.7 Conflict of any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with any provision set forth in
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, that impose
duties on any person, such provision of the Trust Indenture Act of 1939 shall
control.
Section 13.8 Governing Law. This Indenture and each Security shall
be governed by and deemed to be a contract under, and construed in accordance
with, the laws of the State of Michigan, and for all purposes shall be
construed in accordance with the laws of such State, except as may otherwise be
required by mandatory provisions of law, provided, however, that the rights,
duties and obligations of the Trustee are governed and construed in accordance
with the laws of the State of New York.
Section 13.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 13.10 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 13.11 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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90
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of ___________, 1996.
Consumers Power Company
By
----------------------------
Title:
[CORPORATE SEAL]
Attest:
By
----------------------
Title:
THE BANK OF NEW YORK,TRUSTEE
By
----------------------------
Title:
[CORPORATE SEAL]
Attest:
By
--------------------------
Title:
-81-
