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DQE CAPITAL CORPORATION
Issuer
and
DQE, INC.,
Guarantor
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
_________
INDENTURE
Dated as of _________, 1999
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DQE CAPITAL, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________ 1, 1999
Trust Indenture Act Section Indenture
Section
Section 310 (a)(1) . . . . . 809
(a)(2) . . . . . . . . . . 809
(a)(3) . . . . . . . . . . 815
(a)(4) . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 808, 810
Section 311 (a) . . . . . . 813
(b) . . . . . . . . . . . . 813
(c) . . . . . . . . . . . . 813
Section 312 (a) . . . . . . 901
(b) . . . . . . . . . . . . 901
(c) . . . . . . . . . . . . 901
Section 313 (a) . . . . . . 902
(b)(1) . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . 902
(c) . . . . . . . . . . . . 902
(d) . . . . . . . . . . . . 902
Section 314 (a) . . . . . . 902, 505
(a)(4) . . . . . . . . . . 605
(b) . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . 102
(c)(2) . . . . . . . . . . 102
(c)(3) . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . 102
Section 315 (a) . . . . . . 801(a), 803
(b) . . . . . . . . . . . . 802
(c) . . . . . . . . . . . . 801(b)
(d) . . . . . . . . . . . . 801(c)
(d)(1) . . . . . . . . . . 801(a)(1), 801
(c)(1)
(d)(2) . . . . . . . . . . 801(c)(2)
(d)(3) . . . . . . . . . . 801(c)(3)
(e) . . . . . . . . . . . . 714
Section 316 (a) . . . . . . 712, 713
(a)(1)(A) . . . . . . . . . 702, 712
(a)(1)(B) . . . . . . . . . 713
(a)(2) . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 708
(c) . . . . . . . . . . . . 104
Section 317 (a)(1) . . . . . 703
(a)(2) . . . . . . . . . . 705
(b) . . . . . . . . . . . . 503
Section 318 (a) . . . . . . 107
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. General Definitions . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order" or "Company Request . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar" or "$ . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . 4
Governmental Authority . . . . . . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . . . . . . . . . 4
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guarantor Order" or "Guarantor Request . . . . . . . . . . . . . . 4
Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . 5
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register" and "Security Registrar . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 7
ii
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Unpaid Interest . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . 8
SECTION 103. Content and Form of Documents Delivered to Trustee . . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc. to Trustee, Company or Guarantor . . . . . 11
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of Authentication . . . . 14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Dating, Authentication . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer and Exchange . . 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . 22
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . 23
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . 24
SECTION 309. Cancellation by Security Registrar . . . . . . . . . . . 24
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . 25
SECTION 311. Payment to Be in Proper Currency . . . . . . . . . . . . 25
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. Applicability of Article . . . . . . . . . . . . . . . . 25
SECTION 402. Election to Redeem; Notice to Trustee . . . . . . . . . 25
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . . . 26
SECTION 404. Notice of Redemption. . . . . . . . . . . . . . . . . . 26
SECTION 405. Securities Payable on Redemption Date . . . . . . . . . 27
SECTION 406. Securities Redeemed in Part . . . . . . . . . . . . . . 27
ARTICLE FIVE
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COVENANTS
SECTION 501. Payment of Securities. . . . . . . . . . . . . . . . . . 28
SECTION 502. Maintenance of Office or Agency . . . . . . . . . . . . 28
SECTION 503. Money for Securities Payments to Be Held in Trust . . . 29
SECTION 504. Corporate Existence . . . . . . . . . . . . . . . . . . 30
SECTION 505. Annual Officer's Certificate . . . . . . . . . . . . . . 30
SECTION 506. Waiver of Certain Covenants . . . . . . . . . . . . . . 30
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Securities . . . . . . . . 31
SECTION 602. Satisfaction and Discharge of Indenture . . . . . . . . 33
SECTION 603. Application of Trust Money . . . . . . . . . . . . . . . 33
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. Events of Default . . . . . . . . . . . . . . . . . . . 34
SECTION 702. Acceleration of Maturity; Rescission and Annulment . . . 35
SECTION 703. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 704. Application of Money Collected . . . . . . . . . . . . . 37
SECTION 705. Trustee May File Proofs of Claim . . . . . . . . . . . . 37
SECTION 706. Trustee May Enforce Claims without
Possession of Securities . . . . . . . . . . . . . . . 38
SECTION 707. Limitation on Suits . . . . . . . . . . . . . . . . . . 38
SECTION 708. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . 39
SECTION 709. Restoration of Rights and Remedies . . . . . . . . . . . 39
SECTION 710. Rights and Remedies Cumulative . . . . . . . . . . . . . 39
SECTION 711. Delay or Omission Not Waiver . . . . . . . . . . . . . . 39
SECTION 712. Control by Holders of Securities . . . . . . . . . . . . 40
SECTION 713. Waiver of Past Defaults . . . . . . . . . . . . . . . . 40
SECTION 714. Undertaking for Costs. . . . . . . . . . . . . . . . . . 40
SECTION 715. Waiver of Stay or Extension Laws . . . . . . . . . . . . 41
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Certain Duties and Responsibilities . . . . . . . . . . 41
SECTION 802. Notice of Defaults . . . . . . . . . . . . . . . . . . . 42
SECTION 803. Certain Rights of Trustee . . . . . . . . . . . . . . . 42
SECTION 804. Not Responsible for Recitals or Issuance of Securities . 43
SECTION 805. May Hold Securities . . . . . . . . . . . . . . . . . . 44
SECTION 806. Money Held in Trust . . . . . . . . . . . . . . . . . . 44
SECTION 807. Compensation and Reimbursement . . . . . . . . . . . . . 44
SECTION 808. Disqualification; Conflicting Interests . . . . . . . . 45
SECTION 809. Corporate Trustee Required; Eligibility . . . . . . . . 45
SECTION 810. Resignation and Removal; Appointment of Successor . . . 45
SECTION 811. Acceptance of Appointment by Successor . . . . . . . . . 47
SECTION 812. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . 48
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SECTION 813. Preferential Collection of Claims against Company . . . 48
SECTION 814. Appointment of Authenticating Agent . . . . . . . . . . 49
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 901. Lists of Holders. . . . . . . . . . . . . . . . . . . . 50
SECTION 902. Reports by Trustee, Company and Guarantor . . . . . . . 50
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. Company or Guarantor may Consolidate, etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . 51
SECTION 1002. Successor Substituted. . . . . . . . . . . . . . . . . 51
SECTION 1003. Release of Company or Guarantor upon Conveyance or
Other Transfer. . . . . . . . . . . . . . . . . . . . 52
SECTION 1004. Limitation. . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures without Consent of Holders . . 53
SECTION 1102. Supplemental Indentures with Consent of Holders . . . . 54
SECTION 1103. Execution of Supplemental Indentures . . . . . . . . . 56
SECTION 1104. Effect of Supplemental Indentures . . . . . . . . . . . 56
SECTION 1105. Conformity with Trust Indenture Act . . . . . . . . . . 56
SECTION 1106. Reference in Securities to Supplemental Indentures . . 56
SECTION 1107. Modification without Supplemental Indenture . . . . . . 56
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. Purposes for Which Meetings May Be Called . . . . . . . 57
SECTION 1202. Call, Notice and Place of Meetings . . . . . . . . . . 57
SECTION 1203. Persons Entitled to Vote at Meetings . . . . . . . . . 58
SECTION 1204. Quorum; Action . . . . . . . . . . . . . . . . . . . . 58
SECTION 1205. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . . . . 59
SECTION 1206. Counting Votes and Recording Action of Meetings . . . . 59
SECTION 1207. Action without Meeting . . . . . . . . . . . . . . . . 60
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ARTICLE THIRTEEN
GUARANTY
SECTION 1301. Guaranty. . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1302. Execution and Delivery of Guaranty. . . . . . . . . . . 61
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. Liability Solely Corporate . . . . . . . . . . . . . . 62
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00
-xx-
XXXXXXXXX, dated as of 1, 1999 among DQE CAPITAL
-----------
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein sometimes called the "Company"), DQE, INC., a
corporation duly organized and existing under the laws of the Commonwealth
of Pennsylvania (herein sometimes called the "Guarantor"), and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association duly organized and
existing under the laws of the United States of America, as trustee (herein
sometimes called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as
contemplated herein, each with the Guaranty endorsed thereon; and all acts
necessary to make this Indenture a valid agreement of the Company have been
performed.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of
this Indenture to provide for the guaranty of the Securities provided for
herein; and all acts necessary to make this Indenture a valid agreement of
the Guarantor have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that in consideration
of the premises and of the purchase of the Securities by the Holders
thereof, it is hereby covenanted and agreed, for the equal and ratable
benefit of all Holders of the Securities or of series thereof (except as
otherwise contemplated herein), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. GENERAL DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except
as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the
date of such computation or, at the election of the Company or
the Guarantor, as the case requires, at the date of the execution
and delivery of this Indenture;
(d) any reference to an "Article" or a "Section" refers to
an Article or a Section, as the case may be, of this Indenture;
and
(e) 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.
"ACT", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "CONTROL" when used with respect to any specified Person
means the power to direct generally the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than the Company,
the Guarantor or any Affiliate of either thereof) authorized by the Trustee
to act on behalf of the Trustee to authenticate the Securities of one or
more series.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer or
the Corporate Secretary or any other duly authorized officer, agent or
attorney-in-fact of the Company or the Guarantor named in an Officer's
Certificate of the Company or the Guarantor, as the case requires, signed
by any of the aforesaid corporate officers.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or the Guarantor, as the case requires, or any committee thereof
duly authorized to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company or
the Guarantor to have been duly adopted by the Board of Directors of the
Company or the Guarantor, as the case requires, and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment or
any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is not a
day on which banking institutions or trust companies in such Place of
Payment or other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of 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, then the body,
if any, performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY ORDER" or "COMPANY REQUEST" means a written order or
request, as the case may be, signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution and delivery of
this Indenture is located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000-0000.
"CORPORATION" means a corporation, association, company, joint
stock company or business trust.
"DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
702. "INTEREST" with respect to a Discount Security means interest, if
any, borne by such Security at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to
such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 701.
"FAIR VALUE" has the meaning specified in Section 1005.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of Columbia
or of any county, municipality or other political subdivision of any
thereof, or any department, agency, authority or other instrumentality of
any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States entitled to the benefit of the full faith and
credit thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations
described in clause (a) above or in any specific interest or
principal payments due in respect thereof; provided, however,
that the custodian of such obligations or specific interest or
principal payments shall be a bank or trust company (which may
include the Trustee or any Paying Agent) subject to Federal or
State supervision or examination with a combined capital and
surplus of at least Fifty Million Dollars ($50,000,000); and
provided, further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the
full amount received by such custodian in respect of such
obligations or specific payments and shall not be permitted to
make any deduction therefrom.
"GUARANTOR" means the Person named as "Guarantor" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall include such successor Person.
"GUARANTOR ORDER" or "GUARANTOR REQUEST" means a written order or
request, as the case may be, signed in the name of the Guarantor by an
Authorized Officer of the Guarantor and delivered to the Trustee.
"GUARANTY" means the guaranty of the Guarantor endorsed on each
Security authenticated and delivered under this Indenture and shall include
the guaranty set forth in Section 1301.
"HOLDER" means a Person in whose name a Security is registered in
the Security Register.
"INDENTURE" means this instrument as originally executed and
delivered and as it may from time to time be amended and/or supplemented by
one or more indentures or other instruments supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as contemplated by
Section 301.
"INDEPENDENT EXPERT'S CERTIFICATE" has the meaning specified in
Section 1005.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call
for redemption or otherwise.
"NOTICE OF DEFAULT" has the meaning specified in Section 701(c).
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer of the Company or the Guarantor, as the case requires,
and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
be counsel for the Company or the Guarantor or other counsel acceptable to
the Trustee and who may be an employee or Affiliate of the Company.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid for all purposes of
this Indenture in accordance with Section 601 (whether or not the
Company's indebtedness in respect thereof shall be satisfied and
discharged for any other purpose); and
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it and the
Company that such Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this
Indenture, or the Outstanding Securities of any series or Tranche, have
given or made any request, demand, authorization, direction, notice,
consent or waiver hereunder or whether or not a quorum is present at a
meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such obligor or such Affiliate
owns all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series and each such Tranche,
as the case may be, determined without regard to this clause (x))
shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the Trustee knows
to be so owned shall be so disregarded; provided, however, that
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if it is established to the reasonable
satisfaction of the Trustee that the pledgee, and not the
Company, or any such other obligor or Affiliate of either
thereof, has the right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other
obligor; and
(y) the principal amount of a Discount Security that shall
be deemed to be Outstanding for such purposes shall be the amount
of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of
the Maturity thereof pursuant to Section 702;
provided, further, that in the case of any Security the principal of which
is payable from time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to be Outstanding at
any time for all purposes of this Indenture shall be the original principal
amount thereof less the aggregate amount of principal thereof theretofore
paid.
"PAYING AGENT" means any Person, including the Company or the
Guarantor, authorized to pay the principal of, and premium, if any, or
interest, if any, on any Securities on behalf of the Company or the
Guarantor.
"PERIODIC OFFERING" means an offering of Securities of a series
from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the
Company or its agents from time to time subsequent to the initial request
for the authentication and delivery of such Securities by the Trustee, as
contemplated in Section 301 and clause (b) of Section 303.
"PERSON" means any individual, corporation, partnership, limited
liability partnership, limited liability company, joint venture, trust or
unincorporated organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities of
any series, or Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 502, principal of
and premium, if any, and interest, if any, on the Securities of such series
or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SECURITIES" means any bonds, notes and other evidences of
indebtedness authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Unpaid Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or variable)
at which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on an obligation shall be made (a) if
the Company's obligations in respect of any other indebtedness shall be
evidenced or secured in whole or in part by such obligation, by reference
to the lower of the Stated Interest Rate on such obligation and the Stated
Interest Rate on such other indebtedness and (b) without regard to the
effective interest cost to the Company of such obligation or of any such
other indebtedness.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or extension).
"SUCCESSOR" has the meaning set forth in Section 1001.
"TRANCHE" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount and/or
date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, acting as trustee hereunder,
"Trustee" shall mean each such Person so acting.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
"UNPAID INTEREST" has the meaning specified in Section 307.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company or the Guarantor to the Trustee
to take any action under any provision of this Indenture, the Company and
the Guarantor each shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, it being understood
that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each 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 each such
individual, such individual has made such examination or
investigation as is necessary to enable such individual to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. CONTENT AND FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent
upon legal matters, upon an opinion of, or representations by, counsel,
unless, in any case, such officer has actual knowledge that the certificate
or opinion or representations with respect to the matters upon which such
Officer's Certificate may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is dependent
upon factual matters, information with respect to which is in the
possession of the Company or the Guarantor, upon a certificate of, or
representations by, an officer or officers of the Company or the Guarantor,
as the case requires, unless such counsel has actual knowledge that the
certificate or opinion or representations with respect to the matters upon
which his opinion may be based as aforesaid are erroneous. In addition,
any Opinion of Counsel may be based (without further examination or
investigation), insofar as it relates to or is dependent upon matters
covered in an Opinion of Counsel rendered by other counsel, upon such other
Opinion of Counsel, unless such counsel has actual knowledge that the
Opinion of Counsel rendered by such other counsel with respect to the
matters upon which his Opinion of Counsel may be based as aforesaid are
erroneous. If, in order to render any Opinion of Counsel provided for
herein, the signer thereof shall deem it necessary that additional facts or
matters be stated in any Officer's Certificate provided for herein, then
such certificate may state all such additional facts or matters as the
signer of such Opinion of Counsel may request.
(b) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents. Where (i) any Person is required to
make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this
Indenture, or (ii) two or more Persons are each required to make, give or
execute any such application, request, consent, certificate, statement,
opinion or other instrument, any such applications, requests, consents,
certificates, statements, opinions or other instruments may, but need not,
be consolidated and form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel or other
document or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document
or instrument may be substituted therefor in corrected form with the same
force and effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or delivery
thereof, such substitute document or instrument shall be deemed to have
been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise rendered ineffective
but shall be and remain in full force and effect, except to the extent that
such action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be
the valid obligations of the Company entitled to the benefits provided by
this Indenture equally and ratably with all other Outstanding Securities,
except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to be
made, given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the provisions of Article
Twelve, or a combination of such instruments and any such record. Except
as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company and the
Guarantor. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "ACT" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 801) conclusive in favor of the
Trustee, the Company and the Guarantor, if made in the manner provided in
this Section. The record of any meeting of Holders shall be proved in the
manner provided in Section 1206.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which the Trustee
and the Company deem sufficient. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his authority.
(c) The ownership of Securities and principal amount
(except as otherwise contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, the Company or the Guarantor in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf of
a Holder may be revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder, proven in the
manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as
to any action taken by such Act of Holders. If the Company shall so
determine, new Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and the Company, to
such action may be prepared and executed by the Company and the Guarantor
and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) Each of the Company and the Guarantor may, at its
option, by Company Order or Guarantor Order, as the case requires, fix in
advance a record date for the determination of Holders entitled to give any
request, demand, authorization, direction, notice, consent, waiver or other
Act solicited by the Company, but neither the Company nor the Guarantor
shall have any obligation to do so; provided, however, that neither the
Company nor the Guarantor may fix a record date for the giving or making of
any notice, declaration, request or direction referred to in the next
sentence. In addition, the Trustee may, at its option, fix in advance a
record date for the determination of Holders of Securities of any series
entitled to join in the giving or making of any Notice of Default, any
declaration of acceleration referred to in Section 702, any request to
institute proceedings referred to in Section 707 or any direction referred
to in Section 712, in each case with respect to Securities of such series.
If any such record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act, or such notice,
declaration, request or direction, may be given before or after such record
date, but only the Holders of record at the close of business on the record
date shall be deemed to be Holders for the purposes of determining (i)
whether Holders of the requisite proportion of the Outstanding Securities
have authorized or agreed or consented to such Act (and for that purpose
the Outstanding Securities shall be computed as of the record date) and/or
(ii) which Holders may revoke any such Act (notwithstanding subsection (e)
of this Section); and any such Act, given as aforesaid, shall be effective
whether or not the Holders which authorized or agreed or consented to such
Act remain Holders after such record date and whether or not the Securities
held by such Holders remain Outstanding after such record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE, COMPANY OR GUARANTOR.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
the Trustee by any Holder or by the Company or the Guarantor, or the
Company or the Guarantor by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise expressly provided
herein) if the same shall be in writing and delivered personally to an
officer or other responsible employee of such party, or transmitted by
facsimile transmission, telex or other direct written electronic means to
the telephone number or other electronic communications address set forth
for such party below or otherwise as such party shall from time to time
designate, or transmitted by registered mail, charges prepaid, to the
applicable address set forth for such party below or to such other address
as such party may from time to time designate:
If to the Trustee, to:
The First National Bank of Chicago
Xxx X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to:
DQE Capital Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Guarantor, to:
DQE, Inc.
Xxxxxxxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
000 Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (412)
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date
of delivery, if transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of transmission, and if
transmitted by registered mail, on the date of receipt. The Trustee shall
promptly deliver to the Guarantor a copy of any such communication
delivered by the Trustee to the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with
respect to other Holders.
Any notice required by this Indenture may be waived in writing by
the Person entitled to receive such notice, either before or after the
event otherwise to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts
with another provision hereof which is required or deemed to be included in
this Indenture by, or is otherwise governed by, any provision of the Trust
Indenture Act, such other provision shall control; and if any provision
hereof otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company or
the Guarantor shall bind its successors and assigns, whether so expressed
or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture, the Securities or the
Guaranties shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture, the Securities or the Guaranties,
express or implied, shall give to any Person, other than the parties
hereto, their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture, the Securities and the Guaranties shall be
governed by and construed in accordance with the law of the State of New
York (including without limitation Section 5-1401 of the New York General
Obligations Law or any successor to such statute), except to the extent
that the Trust Indenture Act shall be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
the Securities other than a contrary provision in the Securities of any
series, or any Tranche thereof, or in the indenture supplemental hereto,
Board Resolution or Officer's Certificate which establishes the terms of
the Securities of such series or Tranche) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, and, if such payment is
made or duly provided for on such Business Day, no interest shall accrue on
the amount so payable for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series and the Guaranties to be
endorsed thereon as contemplated by Article Thirteen shall be in
substantially the form or forms established in the Officer's Certificate,
the indenture supplemental hereto or the Board Resolution establishing such
series, in any case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities or Guaranties, as the case requires, as evidenced by their
execution thereof. If the form or forms of Securities of any series or the
Guaranties to be endorsed thereon are established in an Officer's
Certificate or a Board Resolution, such Officer's Certificate or Board
Resolution shall be delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.
The Securities of each series shall be issuable in registered
form without coupons. The definitive Securities and Guaranties endorsed
thereon shall be produced in such manner as shall be determined by the
officers executing such Securities or Guaranties, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
----------------------------------
as Trustee
By: ------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. Subject to the last paragraph of this Section, prior to the
authentication and delivery of Securities of any series there shall be
established by specification in an Officer's Certificate, a supplemental
indenture or a Board Resolution of the Company:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all
other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 406 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder);
(c) the Persons (without specific identification) to whom
interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, if other than the Persons in whose
names such Securities (or one or more Predecessor Securities) are
registered at the close of business on the Regular Record Date
for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable or
any formulary or other method or other means by which such date
or dates shall be determined, by reference to an index or other
fact or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension); and the right,
if any, to extend the Maturity of the Securities of such series,
or any Tranche thereof, and the duration of any such extension;
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal shall
bear interest, and the right, if any, to extend the interest
payment periods and the duration of any such extension; if
different from the rate or rates at which such Securities shall
bear interest prior to Maturity, and, if applicable, the rate or
rates at which overdue premium or interest shall bear interest,
if any), or any formulary or other method or other means by which
such rate or rates shall be determined by reference to an index
or other fact or event ascertainable outside of this Indenture or
otherwise; the date or dates from which such interest shall
accrue; the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment Date; the
basis of computation of interest, if other than as provided in
Section 310; and the right, if any, to extend the interest
payment periods and the duration of any such extension;
(f) the place or places at which and/or the methods (if
other than as provided elsewhere in this Indenture) by which (i)
the principal of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof, shall be
payable, (ii) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (iii) exchanges
of Securities of such series, or any Tranche thereof, may be
effected and (iv) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security Registrar and any
Paying Agent or Agents for such series or Tranche; and, if such
is the case, that the principal of such Securities shall be
payable without the presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms and
conditions upon which the Securities of such series, or any
Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company;
(h) the obligation or obligations, if any, of the Company
to redeem or purchase the Securities of such series, or any
Tranche thereof, pursuant to any sinking fund or other mandatory
redemption provisions or at the option of a Holder thereof and
the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or
in part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such series,
or any Tranche thereof, shall be issuable if other than
denominations of One Thousand Dollars ($1,000) and any integral
multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of or premium, if
any, or interest, if any, on the Securities of such series, or
any Tranche thereof, shall be payable (if other than in Dollars)
and the formulary or other method or other means by which the
equivalent of any such amount in Dollars is to be determined for
any purpose, including for the purpose of determining the
principal amount of such Securities deemed to be Outstanding at
any time;
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof,
are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may
be made;
(l) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof,
are to be payable, or are to be payable at the election of the
Company or a Holder thereof, in securities or other property, the
type and amount of such securities or other property, or the
formulary or other method or other means by which such amount
shall be determined, and the period or periods within which, and
the terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of the principal of or
premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, may be determined with reference
to an index or other fact or event ascertainable outside of this
Indenture, the manner in which such amounts shall be determined
(to the extent not established pursuant to clause (e) of this
paragraph);
(n) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of such series, or
any Tranche thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 702;
(o) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person;
(p) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof, denominated in
a currency other than Dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section 601;
(q) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations on
the rights of the Holder or Holders of such Securities to
transfer or exchange the same or to obtain the registration of
transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and all
other matters incidental to such Securities;
(r) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all
matters incidental thereto which are not specifically addressed
in a supplemental indenture as contemplated by clause (f) of
Section 1101;
(s) to the extent not established pursuant to clause (q) of
this paragraph, any limitations on the rights of the Holders of
the Securities of such Series, or any Tranche thereof, to
transfer or exchange such Securities or to obtain the
registration of transfer thereof; and if a service charge will be
made for the registration of transfer or exchange of Securities
of such series, or any Tranche thereof, the amount or terms
thereof;
(t) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of
such series, or any Tranche thereof;
(u) any terms of the Guaranties with respect to the
Securities of such series, or any Tranche thereof, in addition to
those set forth in Section 1301, or any exceptions to those set
forth in Section 1301; and
(v) any other terms of the Securities of such series, or
any Tranche thereof.
With respect to Securities of a series subject to a Periodic
Offering, the Officer's Certificate, the indenture supplemental hereto or
the Board Resolution which establishes such series, as the case may be, may
provide general terms or parameters for Securities of such series and
provide either that the specific terms of Securities of such series, or any
Tranche thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance with
procedures specified in a Company Order as contemplated by clause (b) of
Section 303.
Unless otherwise specified with respect to a series of Securities
as contemplated by Section 301(b), any limit upon the aggregate principal
amount of a series of Securities may be increased without the consent of
any Holders and additional Securities of such series may be authenticated
and delivered up to the limit upon the aggregate principal amount
authorized with respect to such series as so increased.
Anything herein to the contrary notwithstanding, the Trustee
shall be under no obligation to authenticate and deliver Securities of any
series the terms of which, established as contemplated by this Section,
would affect the rights, duties, obligations, liabilities or immunities of
the Trustee under this Indenture or otherwise.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
of each series shall be issuable in denominations of One Thousand Dollars
($1,000) and any integral multiple thereof.
SECTION 303. EXECUTION, DATING, AUTHENTICATION.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer, and
may have the corporate seal of the Company affixed thereto or reproduced
thereon and attested by any other Authorized Officer. The signature of any
or all of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers shall
bind the Company, notwithstanding that such individuals, or any of them,
have ceased to be such Authorized Officers prior to the authentication and
delivery of such Securities or were not such Authorized Officers at the
date of such Securities.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Guaranties
to be endorsed on the Securities shall be executed and delivered in
accordance with the provisions of Section 1302.
The Trustee shall authenticate and deliver Securities of a
series, with the Guaranties endorsed thereon, for original issue, at one
time or from time to time in accordance with the Company Order referred to
below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of the Securities of such series and the
Guaranties to be endorsed thereon, as provided in Sections 201
and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of
such Securities and the Guaranties to be endorsed thereon shall
not have been established in an Officer's Certificate, an
indenture supplemental hereto or a Board Resolution, all as
contemplated by Sections 201 and 301, either (i) establishing
such terms or (ii) in the case of Securities of a series subject
to a Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which
procedures may provide, to the extent acceptable to the Trustee,
for authentication and delivery pursuant to oral or electronic
instructions from the Company or any agent or agents thereof,
which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance with
the instrument or instruments delivered pursuant to clause (a)
above;
(c) A Guarantor Order approving the terms and delivery of
the Guaranties to be endorsed on such Securities as contemplated
by the Company Order delivered pursuant to clause (b) above;
(d) Securities of such series, each executed on behalf of
the Company by an Authorized Officer and having a Guaranty
endorsed thereon executed on behalf of the Guarantor by an
Authorized Officer;
(e) an Opinion of Counsel to the effect that:
(i) (A) the form or forms of such Securities have been duly
authorized by the Company, (B) the form or forms of the
Guaranties endorsed thereon have been duly authorized by the
Guarantor and (C) the forms of such Securities and such
Guaranties have been established in conformity with the
provisions of this Indenture;
(ii) (A) the terms of such Securities have been duly
authorized by the Company, (B) the terms of such Guaranties have
been duly authorized by the Guarantor and (C) the terms of such
Securities and such Guaranties have been established in
conformity with the provisions of this Indenture; and
(iii) when such Securities shall have been authenticated
and delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, such Securities and the Guaranties
endorsed thereon will constitute valid obligations of the Company
and the Guarantor, respectively, entitled to the benefits
provided by this Indenture;
provided, however, that, with respect to the Securities of a series subject
to a Periodic Offering, the Trustee shall be entitled to receive such
Opinion of Counsel only once at or prior to the time of the first
authentication and delivery of the Securities of such series (provided that
such Opinion of Counsel addresses the authentication and delivery of all
Securities of such series), and that, in lieu of the opinions described in
clauses (ii) and (iii) above, such Counsel may opine that:
(x) when the terms of such Securities and the Guaranties to
be endorsed thereon shall have been established pursuant to a
Company Order or Orders and, if applicable, a Guarantor Order or
Orders, or pursuant to such procedures as may be specified from
time to time by a Company Order or Orders, and, if applicable, a
Guarantor Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered pursuant
to clause (a) above, such terms will have been duly authorized by
the Company and the Guarantor, respectively, and will have been
established in conformity with the provisions of this Indenture;
and
(y) when such Securities shall have been (1) authenticated
and delivered by the Trustee in accordance with this Indenture
and the Company Order or Orders and Guarantor Order or Orders, if
any, or the specified procedures referred to in clause (x) above
and (2) issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
such Securities and the Guaranties endorsed thereon will
constitute valid obligations of the Company and the Guarantor,
respectively, entitled to the benefits provided by this
Indenture.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company and the Guarantor of any of such Securities and the Guaranties
endorsed thereon, respectively, the forms and terms thereof, the validity
thereof and the compliance of the authentication and delivery thereof with
the terms and conditions of this Indenture, upon the Opinion or Opinions of
Counsel and the certificates and other documents delivered pursuant to this
Article at or prior to the time of the first authentication and delivery of
Securities of such series until any of such opinions, certificates or other
documents have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume
that the Company's instructions to authenticate and deliver such
Securities, and the Guarantor's approval of the delivery of the Guaranties
thereon, do not violate any applicable law or any applicable rule,
regulation or order of any Governmental Authority having jurisdiction over
the Company or the Guarantor.
If the form or terms of the Securities of any series have been
established by or pursuant to an Officer's Certificate or Board Resolution
as permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security,
and the Guaranty endorsed thereon, shall be dated the date of the
authentication of such Security.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security or
Guaranty endorsed thereon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee or an Authenticating Agent by
manual signature of an authorized officer thereof, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing,
if (a) any Security shall have been authenticated and delivered hereunder
to the Company, or any Person acting on its behalf, but shall never have
been issued and sold by the Company, (b) the Company shall deliver such
Security to the Security Registrar for cancellation or shall cancel such
Security and deliver evidence of such cancellation to the Trustee, in each
case as provided in Section 309 and (c) the Company, at its election, shall
deliver to the Trustee a written statement (which need not comply with
Section 102 and need not be accompanied by an Officer's Certificate or an
Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, then 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 hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series,
or any Tranche thereof, the Company may execute, and upon Company Order and
Guarantor Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed,
photocopied or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which
they are issued, having Guaranties endorsed thereon, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities or Guaranties may determine, as evidenced by
their execution of such Securities or Guaranties; provided, however, that
temporary Securities need not recite specific redemption, sinking fund,
conversion or exchange provisions.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be exchangeable,
without charge to the Holders thereof, for definitive Securities of such
series or Tranche, with the definitive Guaranties of the Guarantor endorsed
thereon, upon surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section 502 in a Place of
Payment for such Securities. Upon such surrender of temporary Securities,
the Company, except as aforesaid, shall execute and the Trustee shall
authenticate and deliver in exchange therefor definitive Securities of the
same series and Tranche, of authorized denominations and of like tenor and
aggregate principal amount, with definitive Guaranties endorsed thereon.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in one of the offices
designated pursuant to Section 502, with respect to the Securities of each
series, or any Tranche thereof, a register (the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities of such series or
Tranche and the registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register for the Securities
of each series, and such Person is referred to herein, with respect to such
series, as the "Security Registrar". Anything herein to the contrary
notwithstanding, the Company may designate one or more of its offices or an
office of any Affiliate (including the Guarantor) as an office in which a
register with respect to the Securities of one or more series, or any
Tranche or Tranches thereof, shall be maintained, and the Company may
designate itself or any Affiliate (including the Guarantor) as the Security
Registrar with respect to one or more of such series. The Security
Register shall be open for inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon
presentment for registration of transfer of any Security of such series or
Tranche at the office or agency of the Company maintained pursuant to
Section 502 in a Place of Payment for such series or Tranche, and further
upon satisfaction of any conditions prescribed by applicable law, the
Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of authorized denominations and
of like tenor and aggregate principal amount, with a Guaranties endorsed
thereon.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged, at the option of the
Holder, for one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount,
upon presentment of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so presented for exchange and upon
satisfaction of any conditions prescribed by applicable law, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities, with Guaranties endorsed thereon, which the Holder making the
exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, and the
Guaranties endorsed thereon shall be valid obligations of the Guarantor,
evidencing the same respective obligations, and being entitled to the same
benefits under this Indenture, as the Securities (and Guaranties endorsed
thereon) presented upon such registration of transfer or exchange.
Every Security presented for registration of transfer or for
exchange shall (if so required by the Company, the Guarantor, Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Guarantor and the Trustee or the Security Registrar, as the case may be,
duly executed by the Holder thereof or his attorney duly authorized in
writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, or any Tranche thereof, no service
charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 406 or 1106 not involving any
transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any
series, or any Tranche thereof, during a period of fifteen (15) days
immediately preceding the date notice is to be given identifying the serial
numbers of the Securities of such series or Tranche called for redemption
or (b) any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is presented to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and Tranche, and of
like tenor and principal amount, having a Guaranty endorsed thereon and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the
Trustee (a) evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security or
indemnity as may be reasonably required by them to save each of them and
any agent of any of them harmless, then, in the absence of notice to the
Company, the Guarantor or the Trustee that such Security is held by a
Person deemed to be a protected purchaser under applicable law, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of the same
series and Tranche, and of like tenor and principal amount, having a
Guaranty endorsed thereon and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company or the Guarantor in its discretion may, but subject to
compliance with the conditions set forth in the next preceding paragraph,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the Trustee)
in connection therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security and the Guaranty endorsed
thereon shall constitute an original additional contractual obligation of
the Company or the Guarantor, as the case requires, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone other than the Holder of such new Security, and any such new
Security and Guaranty shall be entitled to all the benefits of this
Indenture equally and ratably with any and all other Securities of such
series duly issued hereunder and the Guaranties endorsed thereon.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, interest
on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date,
including without limitation interest the payment period for which has been
extended as specified with respect to such series as contemplated by
Section 301 (herein called "Unpaid Interest"), shall forthwith cease to be
payable to the Holder on the related Regular Record Date by virtue of
having been such Holder, and such Unpaid Interest may be paid by the
Company or the Guarantor, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company or the Guarantor may elect to make payment
of any Unpaid Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a date
(herein called a "Special Record Date") for the payment of such
Unpaid Interest, which shall be fixed in the following manner.
The Company or the Guarantor shall notify the Trustee in writing
of the amount of Unpaid Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and
at the same time the Company or the Guarantor, as the case
requires, shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Unpaid Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Unpaid Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Unpaid Interest which shall
be not more than thirty (30) days and not less than ten (10) days
prior to the date of the proposed payment and not less than
twenty-five (25) days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly
notify the Company and the Guarantor of such Special Record Date
and, in the name and at the expense of the Company, shall, not
less than fifteen (15) days prior to such Special Record Date,
cause notice of the proposed payment of such Unpaid Interest and
the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at
the address of such Holder as it appears in the Security
Register. Notice of the proposed payment of such Unpaid Interest
and the Special Record Date therefor having been so mailed, such
Unpaid Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company or the Guarantor may make payment of any
Unpaid Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company or the Guarantor to the Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to the due presentment of any Security for
registration of transfer, the Company, the Guarantor, the Trustee and any
agent of the Company, the Guarantor or the Trustee may treat the Person in
whose name such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and premium,
if any, and (subject to Section 307) interest, if any, on such Security and
for all other purposes whatsoever, whether or not such Security be overdue,
and none of the Company, the Guarantor or the Trustee or any agent of the
Company, the Guarantor or the Trustee shall be affected by notice to the
contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities presented for payment, redemption,
registration of transfer or exchange shall, if presented to any Person
other than the Security Registrar, be delivered to the Security Registrar
and, if not theretofore canceled, shall be promptly canceled by the
Security Registrar. The Company or the Guarantor may at any time deliver
to the Security Registrar for cancellation any Securities previously
authenticated and delivered hereunder which the Company or the Guarantor
may have acquired in any manner whatsoever or which the Company shall not
have issued and sold, and all Securities so delivered shall be promptly
canceled by the Security Registrar. Unless by a Company Order the Company
shall direct that canceled Securities be returned to it, all canceled
Securities held by the Security Registrar shall be disposed of in
accordance with the Security Registrar's customary procedures. The
Security Registrar shall promptly deliver to the Company and the Trustee
evidence of any cancellation by it of a Security, and of any disposition by
it of a canceled Security, in accordance with this Section 309.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a three hundred
sixty (360) day year consisting of twelve (12) thirty (30) day months, and,
with respect to any period less than a full calendar month, on the basis of
the actual number of days elapsed during such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with
respect to such Securities as contemplated by Section 301, the obligation
of the Company or the Guarantor to make any payment of the principal
thereof, or the premium, if any, or interest, if any, thereon, shall not be
discharged or satisfied by any tender by the Company or the Guarantor, or
recovery by the Trustee, in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency then due
and payable. If any such tender or recovery is in a currency other than
the Required Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency. The costs
and risks of any such exchange, including without limitation the risks of
delay and exchange rate fluctuation, shall be borne by the Company and the
Guarantor, the Company and the Guarantor shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency then due
and payable, and in no circumstances shall the Trustee be liable therefor
except in the case of its negligence or willful misconduct.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche) in accordance with
this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or an Officer's Certificate. The
Company shall, at least forty-five (45) days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date and of the
principal amount of such Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in
this Indenture or (b) pursuant to an election of the Company which is
subject to a condition specified in the terms of such Securities, the
Company and the Guarantor shall each furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to be
redeemed shall be selected by the Security Registrar from the Outstanding
Securities of such series or Tranche not previously called for redemption,
by such method as shall be provided for such series or Tranche, or, in the
absence of any such provision, by such method of random selection as the
Security Registrar shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (in any
authorized denomination for Securities of such series or Tranche) of the
principal amount of Securities of such series or Tranche having a
denomination larger than the minimum authorized denomination for Securities
of such series or Tranche; provided, however, that if, as indicated in an
Officer's Certificate, the Company shall have offered to purchase all or
any principal amount of the Securities then Outstanding of any series, or
any Tranche thereof, and less than all of such Securities as to which such
offer was made shall have been tendered to the Company for such purchase,
the Security Registrar, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which have not
been so tendered.
The Security Registrar shall promptly notify the Company and
the Trustee in writing of the Securities selected for redemption and, in
the case of any Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided
in Section 106 to the Holders of the Securities to be redeemed not less
than thirty (30) nor more than sixty (60) days prior to the Redemption
Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
With respect to any notice of redemption of Securities at
the election of the Company, unless, upon the giving of such notice, such
Securities shall be deemed to have been paid in accordance with Section
601, such notice may state that such redemption shall be conditional upon
the receipt by the Paying Agent or Agents for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities
and that if such money shall not have been so received such notice shall be
of no force or effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be
made and within a reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that such money was not
so received and such redemption was not required to be made and the Paying
Agent or Agents for the Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such Securities which had
been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition
for redemption as aforesaid, shall be given by the Company or, upon Company
Request, by the Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Securities shall be given by
the Security Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless, in the case of an unconditional notice of
redemption, the Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company, the
Guarantor or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Guarantor
or the Trustee, as the case may be, duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, a new Security or Securities of the same series and
Tranche, of any authorized denomination requested by such Holder and of
like tenor and in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered,
with a Guaranty endorsed thereon.
ARTICLE FIVE
COVENANTS
SECTION 501. PAYMENT OF SECURITIES.
The Company shall pay the principal of and premium, if any,
and interest, if any, on the Securities of each series in accordance with
the terms of such Securities and this Indenture.
SECTION 502. MAINTENANCE OF OFFICE OR AGENCY.
The Company and the Guarantor shall maintain in each Place
of Payment for the Securities of each series, or any Tranche thereof, an
office or agency where payment of such Securities shall be made, where the
registration of transfer or exchange of such Securities may be effected and
where notices and demands to or upon the Company or the Guarantor in
respect of such Securities and this Indenture may be served. The Company
and the Guarantor shall give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency and
prompt notice to the Holders of any such change in the manner specified in
Section 106. If at any time the Company or the Guarantor shall fail to
maintain any such required office or agency in respect of Securities of any
series, or any Tranche thereof, or shall fail to furnish the Trustee with
the address thereof, payment of such Securities shall be made, registration
of transfer or exchange thereof may be effected and notices and demands in
respect thereof may be served at the Corporate Trust Office of the Trustee,
and each of the Company and the Guarantor hereby appoint the Trustee as its
agent for all such purposes in any such event.
The Company or the Guarantor may also from time to time
designate one or more other offices or agencies with respect to the
Securities of one or more series, or any Tranche thereof, for any or all of
the foregoing purposes and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such series or Tranche, no
such designation or rescission shall in any manner relieve the Company or
the Guarantor of its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in accordance with
the requirements set forth above. The Company and the Guarantor shall give
prompt written notice to the Trustee, and prompt notice to the Holders in
the manner specified in Section 106, of any such designation or rescission
and of any change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office
or agency required by this Section may be maintained at an office of the
Company or the Guarantor or any Affiliate of either of them, in which event
the Company, the Guarantor or such Affiliate, as the case may be, shall
perform all functions to be performed at such office or agency.
SECTION 503. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche thereof, it
shall, on or before each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided.
The Company and the Guarantor shall promptly notify the Trustee of any
failure by the Company and the Guarantor (or any other obligor on such
Securities) to make any payment of principal or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents
for the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest,
if any, on such Securities, deposit with such Paying Agents sums sufficient
(without duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of any
failure by it so to act.
The Company shall cause each Paying Agent for the Securities
of any series, or any Tranche thereof, other than the Company or the
Trustee, to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company
and the Guarantor (or any other obligor upon such Securities) to
make any payment of principal of and premium, if any, or
interest, if any, on such Securities; 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 and
furnish to the Trustee such information as it possesses regarding
the names and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent and, if so stated in a Company Order delivered to the Trustee,
in accordance with the provisions of Article Six; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining
unclaimed for two years after such principal and premium, if any, or
interest, if any, has become due and payable shall be paid to the Company
on Company Request, or, if then held by the Company, shall be discharged
from such trust; and, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as the Holder of
an Outstanding Security, look only to the Company and the Guarantor for
payment of the amount so due and payable and remaining unpaid, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such payment to the Company, may at the expense
of the Company, cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days from the date of
such mailing, any unclaimed balance of such money then remaining will be
paid to the Company.
SECTION 504. CORPORATE EXISTENCE.
Subject to the rights of each of the Company and the
Guarantor under Article Ten, each of the Company and the Guarantor shall do
or cause to be done all things necessary to preserve and keep its corporate
existence in full force and effect.
SECTION 505. ANNUAL OFFICER'S CERTIFICATE
Not later than December 1 in each year, commencing December
1, 1999, each of the Company and the Guarantor shall deliver to the Trustee
an Officer's Certificate which need not comply with Section 102, executed
by its principal executive officer, principal financial officer or
principal accounting officer, as to such officer's knowledge of such
obligor's compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any period of
grace or requirement of notice under this Indenture.
SECTION 506. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in
(a) any covenant or restriction specified with respect to
the Securities of any one or more series, or any Tranche or
Tranches thereof, as contemplated by Section 301 or by Section
1201(b) if before the time for such compliance the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
compliance with such term, provision or condition; provided,
however, that no such waiver shall be effective as to any matters
contemplated in clause (a), (b) or (c) in Section 1102 without
consent of the Holders specified in such Section; and
(b) Section 504 or Article Ten if before the time for such
compliance the Holders of a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition;
but, in either case, no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company and the Guarantor in
respect thereof shall be satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other than the
Company or the Guarantor), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Eligible Obligations, which
shall not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions thereof; provided,
however, that in the case of the provision for payment or redemption of
less than all the Securities of any series or Tranche, such Securities or
portions thereof shall have been selected by the Security Registrar as
provided herein and, in the case of a redemption, the notice requisite to
the validity of such redemption shall have been given or irrevocable
authority shall have been given by the Company to the Trustee to give such
notice, under arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Eligible Obligations deposited in accordance with this
Section shall be held in trust, as provided in Section 603;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel to the effect that such obligations constitute
Eligible Obligations and do not contain provisions permitting the
redemption or other prepayment thereof at the option of the
issuer thereof, and an opinion of an independent public
accountant of nationally recognized standing, selected by the
Company, to the effect that the other requirements set forth in
clause (b) and, if applicable, (c) above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate stating the
Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both,
in accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon Company Request,
acknowledge in writing that such Securities or portions thereof are deemed
to have been paid for all purposes of this Indenture and that the entire
indebtedness of the Company and the Guarantor in respect thereof has been
satisfied and discharged as contemplated in this Section. In the event
that all of the conditions set forth in the preceding paragraph shall have
been satisfied in respect of any Securities or portions thereof except
that, for any reason, the Officer's Certificate specified in clause (z) (if
otherwise required) shall not have been delivered, such Securities or
portions thereof shall nevertheless be deemed to have been paid for all
purposes of this Indenture, and the Holders of such Securities or portions
thereof shall nevertheless be no longer entitled to the benefits provided
by this Indenture or of any of the covenants of the Company under Article
Five (except the covenants contained in Sections 502 and 503) or any other
covenants made in respect of such Securities or portions thereof as
contemplated by Section 301 or Section 1201(b), but the indebtedness of the
Company and the Guarantor in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged prior to Maturity
for any other purpose; and, upon Company Request or Guarantor Request, the
Trustee shall acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided for in
the manner and with the effect provided in this Section, the Security
Registrar shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the case, in
respect of which the indebtedness of the Company and the Guarantor shall
have been satisfied and discharged, all as provided in this Section, do not
mature and are not to be redeemed within the sixty (60) day period
commencing with the date of the deposit of moneys or Eligible Obligations,
as aforesaid, the Company shall, as promptly as practicable, give a notice,
in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such
deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the obligations of
the Company, the Guarantor and the Trustee in respect of such Securities
under Sections 304, 305, 306, 404, 502, 503, 807 and 814 and this Article
shall survive.
The Company shall pay, and shall indemnify the Trustee or
any Paying Agent with which Eligible Obligations shall have been deposited
as provided in this Section against, any tax, fee or other charge imposed
on or assessed against such Eligible Obligations or the principal or
interest received in respect of such Eligible Obligations, including, but
not limited to, any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for purposes of
this Indenture, and, if such is the case, the Company's indebtedness in
respect thereof would be deemed to have been satisfied and discharged
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee or any Paying Agent, as the case may be, (i) shall
be required to return the money or Eligible Obligations, or combination
thereof, deposited with it as aforesaid to the Company or the Guarantor, or
any representative of either thereof, under any applicable Federal or State
bankruptcy, insolvency or other similar law or (ii) are unable to apply any
money with respect to such Security by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction and discharge of
the indebtedness of the Company and the Guarantor in respect thereof shall
retroactively be deemed not to have been effected, and such Security shall
be deemed to remain Outstanding and (b) any satisfaction and discharge of
the indebtedness of the Company and the Guarantor in respect of any
Security shall be subject to the provisions of the last paragraph of
Section 503.
SECTION 602. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and the Trustee,
at the expense of the Company, shall execute such instruments as the
Company shall reasonably request to evidence and acknowledge the
satisfaction and discharge of this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company or the Guarantor has paid or caused to be
paid all other sums payable hereunder by the Company or the
Guarantor;
provided, however, that if, in accordance with the last paragraph of
Section 601, any Security, previously deemed to have been paid for purposes
of this Indenture, shall be deemed retroactively not to have been so paid,
this Indenture shall thereupon be deemed retroactively not to have been
satisfied and discharged, as aforesaid, and to remain in full force and
effect, and the Company shall execute and deliver such instruments as the
Trustee shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company, the Guarantor and
the Trustee under Sections 304, 305, 306, 404, 502, 503, 807 and 814 and
this Article shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall turn over to the Company any
and all money, securities and other property then held by the Trustee for
the benefit of the Holders of the Securities (other than money and Eligible
Obligations held by the Trustee pursuant to Section 603) and shall execute
and deliver to the Company and the Guarantor such instruments as, in the
judgment of the Company and the Guarantor, shall be necessary, desirable or
appropriate to effect or evidence the satisfaction and discharge of this
Indenture.
SECTION 603. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 601, nor the principal or interest payments on any such
Eligible Obligations, shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the principal of and
premium, if any, and interest, if any, on the Securities or portions of
principal amount thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 503; provided, however, that
any cash received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent
practicable and upon Company Request and delivery to the Trustee of the
documents referred to in clause (y) in the first paragraph of Section 601,
be invested in Eligible Obligations of the type described in clause (b) in
the first paragraph of Section 601 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys and the
proceeds of any other Eligible Obligations then held by the Trustee, to pay
when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on and prior to
the Maturity thereof, and interest earned from such reinvestment shall be
paid over to the Company as received, free and clear of any trust, lien or
pledge under this Indenture; and provided, further, that any moneys held in
accordance with this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and premium, if any,
and interest, if any, then due on such Securities shall be paid over to the
Company free and clear of any trust, lien or pledge under this Indenture;
and provided, further, that if an Event of Default shall have occurred and
be continuing, moneys to be paid over to the Company pursuant to this
Section shall be held until such Event of Default shall have been waived or
cured.
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to the
Securities of any series, means any of the following events which shall
have occurred and be continuing:
(a) failure to pay interest, if any, on any Security of
such series within thirty (30) days after the same becomes due
and payable; provided, however, that no such failure shall
constitute an "Event of Default" if the Company shall have made a
valid extension of the interest payment period with respect to
the Securities of such series if so provided with respect to such
series as contemplated by Section 301; or
(b) failure to pay the principal of or premium, if any, on
any Security of such series when due; provided, however, that no
such failure shall constitute an "Event of Default" if the
Company shall have made a valid extension of the Maturity of the
Securities of such series if so provided with respect to such
series as contemplated by Section 301; or
(c) failure to perform or breach of any covenant or
warranty of the Company or the Guarantor in this Indenture (other
than a covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other
than such series) for a period of sixty (60) days after there has
been given, by registered or certified mail, to the Company and
the Guarantor by the Trustee, or to the Company, the Guarantor
and the Trustee by the Holders of at least thirty-three percentum
(33%) in principal amount of the Outstanding Securities of such
series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"NOTICE OF DEFAULT" hereunder, unless the Trustee, or the Trustee
and the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the Trustee
and the Holders of such principal amount of Securities of such
series, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the
Company or the Guarantor within such period and is being
diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the
Company or the Guarantor in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order
adjudging the Company or the Guarantor a bankrupt or insolvent,
or approving as properly filed a petition by one or more Persons
other than the Company or the Guarantor seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company or the Guarantor under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company
or the Guarantor or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any
such decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of ninety
(90) consecutive days; or
(e) the commencement by the Company or the Guarantor of a
voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by the Company or the Guarantor to
the entry of a decree or order for relief in respect of the
Company or the Guarantor in a case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company
or the Guarantor, or the filing by the Company or the Guarantor
of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent
by the Company or the Guarantor to the filing of such petition or
to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or the Guarantor or of any substantial
part of its property, or the making by the Company or the
Guarantor of an assignment for the benefit of creditors, or the
admission by the Company or the Guarantor in writing of its
inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors of the
Company or the Guarantor.
SECTION 702. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be continuing
with respect to Securities of any series at the time Outstanding, then in
every such case the Trustee or the Holders of not less than thirty-three
percentum (33%) in principal amount of the Securities of such series then
Outstanding may declare the principal amount (or, if any of the Securities
of such series are Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof as
contemplated by Section 301) of all of the Securities of such series then
Outstanding to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon such
declaration such principal amount (or specified amount), together with
premium, if any, and accrued interest, if any, thereon, shall become
immediately due and payable; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than one series
of Securities, the Trustee or the Holders of not less than thirty-three
percentum (33%) in aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, may make such declaration of
acceleration, and not the Holders of the Securities of any one of such
series.
At any time after such a declaration of acceleration of the
maturity of the Securities of any series then Outstanding shall have been
made, but before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as provided in this Article, such
declaration and its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company or the Guarantor shall have paid or
deposited with the Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all Securities of
such series then Outstanding;
(ii) the principal of and premium, if any, on any
Securities of such series then Outstanding which have become
due otherwise than by such declaration of acceleration and
interest, if any, thereon at the rate or rates prescribed
therefor in such Securities;
(iii) interest, if any, upon overdue interest, if any,
at the rate or rates prescribed therefor in such Securities,
to the extent that payment of such interest is lawful;
(iv) all amounts due to the Trustee under Section 807;
and
(b) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of
Securities of such series which shall have become due solely by
such declaration of acceleration, shall have been cured or waived
as provided in Section 713.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 703. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 701 shall have occurred and be continuing, the Company or the
Guarantor shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which such
Event of Default shall have occurred, the whole amount then due and payable
on such Securities for principal and premium, if any, and interest, if any,
and, in addition thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 807.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company and the Guarantor or
any other obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of
the Company and the Guarantor or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of the Securities of such series then Outstanding by such
appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 704. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, to the extent permitted by law, at
the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or premium, if any, or interest, if any,
upon presentation of the Securities in respect of which or for the benefit
of which such money shall have been collected and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 807;
SECOND: To the payment of the whole amount then due and
unpaid upon the Outstanding Securities for principal and premium,
if any, and interest, if any, in respect of which or for the
benefit of which such money has been collected; and in case such
proceeds shall be insufficient to pay in full the whole amount so
due and unpaid upon such Securities, then to the payment of such
principal and interest, if any, thereon without any preference or
priority, ratably according to the aggregate amount so due and
unpaid, with any balance then remaining to the payment of
premium, if any, and, if so specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest, if any, on overdue premium, if any, and
overdue interest, if any, ratably as aforesaid, all to the extent
permitted by applicable law;
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
SECTION 705. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or the
Guarantor or any other obligor upon the Securities or the property of the
Company or the Guarantor or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Company or the Guarantor for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for amounts due to
the Trustee under Section 807) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amounts due it under Section 807.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 706. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture, or on
the Securities or the Guaranties endorsed thereon, may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which such judgment has
been recovered.
SECTION 707. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to
the Securities of such series;
(b) the Holders of a majority in aggregate principal amount
of the Securities then Outstanding of all series in respect of
which an Event of Default shall have occurred and be continuing,
considered as one class, shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
shall have been given to the Trustee during such sixty (60) day
period by the Holders of a majority in aggregate principal amount
of the Securities then Outstanding of all series in respect of
which an Event of Default shall have occurred and be continuing,
considered as one class;
it being understood and intended that no one or more of the Holders of
Securities of any series shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Securities of any
series or to obtain or to seek to obtain priority or preference over any
other Holders of Securities of such series or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Securities of such series.
SECTION 708. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any,
and (subject to Section 307) interest, if any, on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 709. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding
shall have been discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the
Company, the Guarantor, the Trustee and such Holder shall be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and such Holder shall
continue as though no such proceeding had been instituted.
SECTION 710. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 711. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 712. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in
principal amount of the Securities of such series then Outstanding shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such
series; provided, however, that if an Event of Default shall have occurred
and be continuing with respect to more than one series of Securities, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, shall have the
right to make such direction, and not the Holders of the Securities of any
one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture, and could not involve the Trustee
in personal liability in circumstances where indemnity would not,
in the Trustee's sole discretion, be adequate,
(b) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders of
Securities of such series not taking part in such direction, and
(c) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 713. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the
Securities of any series then Outstanding may on behalf of the Holders of
all the Securities of such series then Outstanding waive any past default
with respect to such series hereunder and its consequences, except a
default
(a) in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series then
Outstanding, or
(b) in respect of a covenant or provision hereof which
under Section 1102 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
or the affected Tranche thereof.
Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 714. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by its
acceptance of a Security 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, all in the manner, to the extent and except as
provided in the Trust Indenture Act; but the provisions of this Section
shall not apply to any suit instituted by the Company or the Guarantor, to
any suit instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than ten percentum (10%)
in aggregate principal amount of the Outstanding Securities of all series
in respect of which such suit may be brought, considered as one class, or
to any suit instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any Security
on or after the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on or after the Redemption Date).
SECTION 715. WAIVER OF STAY OR EXTENSION LAWS.
To the full extent that it may lawfully so agree, neither
the Company nor the Guarantor shall at any time set up, claim or otherwise
seek to take the benefit or advantage of any stay or extension law, now or
hereafter in effect, in order to prevent or hinder the enforcement of this
Indenture; and each of the Company and the Guarantor, for itself and all
who may claim under it, so far as it or they now or hereafter may lawfully
do so, hereby waives the benefit of all such laws.
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
with respect to Securities of any series,
(i) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties
as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provisions 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) In case an Event of Default with respect to Securities
of any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of 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.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Securities of any one or more series then
Outstanding, as provided herein, relating to the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such series; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 802. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities of
such series in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character
specified in Section 701(c), no such notice to Holders shall be given until
at least seventy-five (75) days after the occurrence thereof; and provided,
further, that, subject to the provisions of Section 801, the Trustee shall
not be deemed to have knowledge of such default unless either (i) a
Responsible Officer of the Trustee shall have actual knowledge of such
default or (ii) the Trustee shall have received written notice thereof from
the Company or any Holder or, in the case of a default described in Section
701(d), from the holder of any indebtedness or from the trustee under any
mortgage, indenture or other instrument referred to in such Section. For
the purpose of this Section, the term "default" means any event which is,
or after notice or lapse of time, or both, would become, an Event of
Default with respect to the Securities of such series.
SECTION 803. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 801 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper
party or parties;
(b) any request, direction or act of the Company or the
Guarantor mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or a Guarantor Request or
Guarantor Order, as the case requires, or as otherwise expressly
provided herein, and any resolution of the Board of Directors of
the Company or the Guarantor may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is specifically
prescribed herein) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate of the Company or the
Guarantor, as appropriate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it complying with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal business
hours, the books, records and premises of the Company or the
Guarantor, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any
Event of Default with respect to the Securities of any series for
which it is acting as Trustee unless either (i) a Responsible
Officer of the Trustee shall have actual knowledge of the Event
of Default or (ii) written notice of such Event of Default shall
have been given to the Trustee by the Company or the Guarantor or
any other obligor on such Securities, or by any Holder of such
Securities.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities and the
Guarantees endorsed thereon (except the Trustee's certificates of
authentication) shall be taken as the statements of the Company and the
Guarantor, as the case requires, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Guarantees endorsed thereon. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 805. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 808 and 813, may otherwise
deal with the Company with the same rights it would have if it were not
such Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 806. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The
Trustee shall be under no liability for interest on or investment of any
money received by it hereunder except as expressly provided herein or
otherwise agreed with, and for the sole benefit of, the Company or the
Guarantor.
SECTION 807. COMPENSATION AND REIMBURSEMENT.
The Company and the Guarantor jointly and severally agree
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent
that any such expense, disbursement or advance as may be
attributable to its negligence, wilful misconduct or bad faith;
and
(c) to indemnify the Trustee and hold it harmless from and
against any loss, liability or expense reasonably incurred by it
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the
performance of its duties hereunder, including the reasonable
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder, except to the extent that any
such loss, liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the obligations of the
Company and the Guarantor under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or collected by
the Trustee as such, other than property and funds held in trust under
Section 603 (except moneys payable to the Company as provided in Section
603). "TRUSTEE" for purposes of this Section shall include any predecessor
Trustee; provided, however, that the negligence, wilful misconduct or bad
faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
SECTION 808. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall either
eliminate such conflicting interest or resign to the extent, in the manner
and with the effect, and subject to the conditions, provided in the Trust
Indenture Act and this Indenture. For purposes of Section 310(b)(1) of the
Trust Indenture Act and to the extent permitted thereby, the Trustee, in
its capacity as trustee in respect of the Securities of any series, shall
not be deemed to have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other series.
SECTION 809. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall
be
(a) a corporation organized and doing business under the
laws of the United States any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least Ten Million Dollars ($10,000,000) and subject to
supervision or examination by Federal, State, Territorial or
District of Columbia authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least Fifty Million Dollars ($50,000,000) or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United
States institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section or the Trust Indenture Act,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 811.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company and the Guarantor. If the instrument of acceptance by a successor
Trustee required by Section 811 shall not have been delivered to the
Trustee within thirty (30) days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Securities of such series then Outstanding
delivered to the Trustee, and to the Company and the Guarantor.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 808 after
written request therefor by the Company, the Guarantor or by any
Holder who has been a bona fide Holder for at least six months,
or
(ii) the Trustee shall cease to be eligible under Section
809 or Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company, the
Guarantor or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company and the Guarantor may remove the
Trustee with respect to all Securities or (y) subject to Section 714, any
Holder who has been a bona fide Holder for at least six (6) months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause (other than as contemplated by clause (y) in subsection (d)
of this Section), with respect to the Securities of one or more series, the
Company and the Guarantor shall take prompt steps to appoint a successor
Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements of
Section 811. If, within one (1) year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Securities of such series
then Outstanding delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 811,
become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company
and the Guarantor. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company and the Guarantor
or the Holders and accepted appointment in the manner required by Section
811, any Holder who has been a bona fide Holder of a Security of such
series for at least six (6) months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall have occurred and
be continuing, if the Company and the Guarantor shall have delivered to the
Trustee or Trustees with respect to the Securities of one or more series,
(i) an instrument executed by an Authorized Officer of each of the Company
and the Guarantor appointing a successor Trustee or Trustees with respect
to such series, effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment, effective as of such date, by
such successor Trustee or Trustees in accordance with Section 811, the
Trustee or Trustees with respect to such series, shall be deemed to have
resigned as contemplated in subsection (b) of this Section, the successor
Trustee or Trustees shall be deemed to have been appointed by the Company
and the Guarantor pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated in
Section 811, all as of such date, and all other provisions of this Section
and Section 811 shall be applicable to such resignation, appointment and
acceptance except to the extent inconsistent with this subsection (f).
This subsection (f) shall not apply with respect to a Trustee appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of any series pursuant to subsection (e) of this Section.
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities
of any series to all Holders of Securities of such series. Each notice
shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its corporate trust office.
SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company,
the Guarantor and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company, the
Guarantor or the successor Trustee, such retiring Trustee shall, upon
payment of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the Guarantor, the retiring Trustee and each successor Trustee
with respect to the Securities of such series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee and
(iii) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Company, the Guarantor or any successor Trustee, such retiring Trustee,
upon payment of all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon reasonable request of any such successor Trustee,
the Company and the Guarantor shall execute instruments to more fully and
certainly vest in and confirm to such successor Trustee all rights, powers
and trusts referred to in subsection (a) or (b) of this Section, as the
case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company,
the Guarantor or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust Indenture
Act), the Trustee shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of claims against the
Company, the Guarantor or such other obligor. For purposes of Section
311(b) of the Trust Indenture Act
(a) the term "cash transaction" shall have the meaning
specified in Rule 11b-4 under the Trust Indenture Act and
(b) the term "self-liquidating paper" shall have the meaning
specified in Rule 11b-6 under the Trust Indenture Act,
in each case as such rule (or any successor rule) shall be in effect at the
applicable time.
SECTION 814. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities of one or more series, or any Tranche
thereof, which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series or Tranche issued upon original
issuance, exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and the Guarantor and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any
State or Territory thereof or the District of Columbia or the Commonwealth
of Puerto Rico, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than Ten Million Dollars
($10,000,000) and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding
to all or substantially all of the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee, the Company and the Guarantor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent, the Company and
the Guarantor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and the Guarantor. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company shall pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
The provisions of Sections 308, 804 and 805 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series, or any Tranche thereof, shall be made pursuant to this
Section, the Securities of such series or Tranche may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
-----------------------------
As Trustee
By---------------------------
As Authenticating Agent
By---------------------------
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be
acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 901. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31 in each
year, commencing December 31, 1999 and within thirty (30) days of such
other times as the Trustee may request in writing, the Company and the
Guarantor shall furnish or cause to be furnished to the Trustee information
as to the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it in any
other capacity and afford to the Holders access to information so preserved
by it, all to such extent, if any, and in such manner as shall be required
by the Trust Indenture Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security Registrar.
SECTION 902. REPORTS BY TRUSTEE, COMPANY AND GUARANTOR.
Not later than July 15 in each year, commencing July 15,
2000, the Trustee shall transmit to the Holders, the Commission and each
securities exchange upon which any Securities are listed, a report, dated
as of the next preceding May 15, with respect to any events and other
matters described in Section 313(a) of the Trust Indenture Act, in such
manner and to the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities exchange
upon which any Securities are listed, and the Company and the Guarantor
shall each file with the Trustee (within thirty (30) days after filing with
the Commission in the case of reports which pursuant to the Trust Indenture
Act must be filed with the Commission and furnished to the Trustee) and
transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be required
by the Trust Indenture Act. The Company and the Guarantor shall notify the
Trustee of the listing of any Securities on any securities exchange.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
Neither the Company nor the Guarantor shall consolidate with
or merge into any other Person, or convey or otherwise transfer, or lease,
all of its properties, as or substantially as an entirety, to any Person,
unless:
(a) the Person formed by such consolidation or into which
the Company or the Guarantor, as the case requires, is merged or
the Person which acquires by conveyance or other transfer, or
which leases (for a term extending beyond the last Stated
Maturity of the Securities then Outstanding), all of the
properties of the Company or the Guarantor, as the case requires,
as or substantially as an entirety, shall be a Person organized
and existing under the laws of the United States, any State or
Territory thereof or the District of Columbia or under the laws
of Canada or any Province thereof (such Person being hereinafter
sometimes called the "SUCCESSOR") and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due
and punctual payment of the principal of and premium, if any, and
interest, if any, on all the Securities then Outstanding and the
performance and observance of every other covenant and condition
of this Indenture to be performed or observed by the Company or
the Guarantor, as the case requires; and
(b) the Company or the Guarantor, as the case requires,
shall have delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each of which shall state that such
consolidation, merger, conveyance or other transfer or lease, and
such supplemental indenture, comply with this Article and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 1002. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger or any conveyance or other
transfer of all the properties of the Company or the Guarantor, as or
substantially as an entirety, in accordance with Section 1001, the
Successor shall succeed to, and be substituted for, and may exercise every
power and right of, the Company or the Guarantor, as the case requires,
under this Indenture with the same effect as if such Successor had been
named as the "Company" or the "Guarantor", as the case requires, herein.
Without limiting the generality of the foregoing, the Successor may execute
and deliver to the Trustee, and thereupon the Trustee shall, subject to the
provisions of Article Three, authenticate and deliver, Securities. All
Securities so executed by the Successor, and authenticated and delivered by
the Trustee, shall in all respects be entitled to the benefits provided by
this Indenture equally and ratably with all Securities executed,
authenticated and delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective. The provisions of this
Section shall not apply in the case of a lease of properties of the Company
or the Guarantor.
SECTION 1003. RELEASE OF COMPANY OR GUARANTOR UPON CONVEYANCE OR OTHER
TRANSFER.
In the case of a conveyance or other transfer to any Person
or Persons as contemplated in Section 1001, upon the satisfaction of all
the conditions specified in Section 1001 the Company or the Guarantor, as
the case requires, (such terms being used in this Section without giving
effect to such transaction) shall be released and discharged from all
obligations and covenants under this Indenture and on and under all
Securities then Outstanding (unless the Company or the Guarantor, as the
case requires, shall have delivered to the Trustee an instrument in which
it shall waive such release and discharge) and the Trustee shall
acknowledge in writing that the Company has been so released and
discharged. The provisions of this Section shall not apply in the case of
a lease of properties of the Company or the Guarantor.
SECTION 1004. LIMITATION.
Nothing in this Indenture shall be deemed to prevent or
restrict:
(a) any consolidation or merger after the consummation of
which the Company or the Guarantor would be the surviving or
resulting entity,
(b) any consolidation of the Company with the Guarantor or
any other Person all of the outstanding voting securities of
which are owned, directly or indirectly, by the Guarantor; or any
merger of any of such Persons into any other of such Persons; or
any conveyance or other transfer, or lease, of properties by any
thereof to any other thereof,
(c) any conveyance or other transfer, or lease, of any part
of the properties of the Company or the Guarantor which does not
constitute the entirety, or substantially the entirety, thereof
or
(d) the approval by the Company or the Guarantor of, or the
consent by the Company or the Guarantor to, any consolidation or
merger to which any direct or indirect subsidiary or affiliate of
the Company or the Guarantor, as the case requires, may be a
party or any conveyance, transfer or lease by any such subsidiary
or affiliate of any of its assets.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, the
Guarantor and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor
of the covenants of the Company or the Guarantor, as the case
requires, herein and in the Securities or the Guarantees endorsed
thereon, all as provided in Article Ten; or
(b) to add one or more covenants of the Company or the
Guarantor or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding Securities of one or more
specified series, or one or more specified Tranches thereof or to
surrender any right or power herein conferred upon the Company or
the Guarantor; or
(c) to change or eliminate any provision of this Indenture
or to add any new provision to this Indenture; provided, however,
that if such change, elimination or addition shall adversely
affect the interests of the Holders of Outstanding Securities of
any series or Tranche in any material respect, such change,
elimination or addition shall become effective with respect to
such series or Tranche only in accordance with the provisions of
Section 1102 or when no Security of such series or Tranche
remains Outstanding; or
(d) to provide collateral security for the Securities or
any series thereof; or
(e) to establish the form or terms of Securities of any
series or Tranche or any Guaranties to be endorsed thereon as
contemplated by Sections 201 and 301; or
(f) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental
thereto; or
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
811(b); or
(h) to provide for the procedures required to permit the
Company to utilize, at its option, a non certificated system of
registration for all, or any series or Tranche of, the
Securities; or
(i) to change any place or places where (1) the principal
of and premium, if any, and interest, if any, on all or any
series of Securities, or any Tranche thereof, shall be payable,
(2) all or any series of Securities, or any Tranche thereof, may
be surrendered for registration of transfer, (3) all or any
series of Securities, or any Tranche thereof, may be surrendered
for exchange and (4) notices and demands to or upon the Company
or the Guarantor in respect of all or any series of Securities,
or any Tranche thereof, and this Indenture may be served; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein; or to add other provisions with respect
to matters or questions arising under this Indenture or to make
any other changes to the provisions hereof, provided that such
additions or other changes shall not adversely affect the
interests of the Holders of Securities of any series or Tranche
in any material respect.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and delivery
of this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes
to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference
or otherwise, this Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust Indenture Act,
and the Company, the Guarantor and the Trustee may, without the
consent of any Holders, enter into an indenture supplemental
hereto to evidence such amendment hereof; or
(y) if any such amendment shall permit one or more changes
to, or the elimination of, any provisions hereof which, at the
date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be
contained herein or are contained herein to reflect any
provisions of the Trust Indenture Act as in effect at such date,
this Indenture shall be deemed to have been amended to effect
such changes or elimination, and the Company, the Guarantor and
the Trustee may, without the consent of any Holders, enter into
an indenture supplemental hereto to evidence such amendment.
SECTION 1102. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1101, with the consent
of the Holders of a majority in aggregate principal amount of the
Securities of all series then Outstanding under this Indenture, considered
as one class, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company, the Guarantor and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to, or changing in any manner or eliminating any
of the provisions of, this Indenture; provided, however, that if there
shall be Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of such series,
then the consent only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided, further, that if
the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect
the rights of the Holders of Securities of one or more, but less than all,
of such Tranches, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required; and
provided, further, that no such supplemental indenture shall
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security (other
than pursuant to the terms thereof), or reduce the principal
amount thereof or the rate of interest thereon (or the amount of
any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable thereon or
reduce the amount of the principal of any Discount Security that
would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 702, or change the coin
or currency (or other property), in which any Security or the
premium, if any, or the interest, if any, thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Maturity of any Security, without,
in any such case, the consent of the Holder of such Security; or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche thereof, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of this
Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 1204 for quorum or voting,
without, in any such case, the consent of the Holder of each
Outstanding Security of such series or Tranche; or
(c) modify any of the provisions of this Section, Section
506 or Section 713 with respect to the Securities of any series
or any Tranche thereof (except to increase the percentages in
principal amount referred to in this Section or such other
Sections or to provide that other provisions of this Indenture
cannot be modified or waived without, in any such case, the
consent of the Holder of each Outstanding Security of such series
or Tranche; 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 811(b) and 1101(g).
A supplemental indenture which (x) changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of the Holders of, or which is to remain in
effect only so long as there shall be Outstanding, Securities of one or
more specified series, or one or more Tranches thereof, or (y) modifies the
rights of the Holders of Securities of such series or Tranches with respect
to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other
series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Anything in this Indenture to the contrary notwithstanding,
if the Officer's Certificate, supplemental indenture or Board Resolution,
as the case may be, establishing the Securities of any series or Tranche
shall so provide, (a) the Holders of such Securities shall be deemed to
have consented to a supplemental indenture containing the additions,
changes or eliminations to or from the Indenture which shall be specified
in such Officer's Certificate, supplemental indenture or Board Resolution
establishing such series or Tranche, (b) no Act of such Holders shall be
required to evidence such consent and (c) such consent may be counted in
the determination of whether or not the Holders of the requisite principal
amount of Securities shall have consented to such supplemental indenture.
SECTION 1103. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 801) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1104. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution and delivery of any supplemental
indenture under this Article this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Any supplemental indenture permitted by this Article may restate this
Indenture in its entirety, and, upon the execution and delivery thereof,
any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1105. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
SECTION 1106. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company and the
Guarantor shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee, the
Company and Guarantor, to any such supplemental indenture may be prepared
and executed by the Company (with Guaranties of the Guarantor endorsed
thereon), and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1107. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular
series of Securities shall have been established in or pursuant to an
Officer's Certificate or a Board Resolution as contemplated by Section 301,
and not in an indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by means of a
supplemental Officer's Certificate or a supplemental Board Resolution, as
the case may be, delivered to, and accepted by, the Trustee; provided,
however, that such supplemental Officer's Certificate or supplemental Board
Resolution shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required
to be satisfied if such additions, changes or elimination were contained in
a supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Officer's
Certificate or supplemental Board Resolution shall be deemed to be a
"supplemental indenture" for purposes of Section 1104 and 1106.
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any time and
from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series or Tranches.
SECTION 1202. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders
of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1201, to be held at such time
and (except as provided in subsection (b) of this Section) at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall
determine, or, with the approval of the Company, at any other place.
Notice of every such meeting, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less
than twenty-one (21) nor more than one hundred eighty (180) days prior to
the date fixed for the meeting.
(b) The Trustee may be asked to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, by the Company, the Guarantor or by the Holders of
thirty-three percentum (33%) in aggregate principal amount of all of such
series and Tranches, considered as one class, for any purpose specified in
Section 1201, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting. If the Trustee shall have been
asked by the Company or the Guarantor to call such a meeting, the Company
or the Guarantor, as the case requires, shall determine the time and place
for such meeting and may call such meeting by giving notice thereof in the
manner provided in subsection (a) of this Section, or shall direct the
Trustee, in the name and at the expense of the Company or the Guarantor, as
the case requires, to give such notice. If the Trustee shall have been
asked to call such a meeting by Holders in accordance with this subsection
(b), and the Trustee shall not have given the notice of such meeting within
twenty-one (21) days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the
Company, the Guarantor or the Holders of Securities of such series and
Tranches, in the principal amount above specified may determine the time
and the place in the Borough of Manhattan, The City of New York, or in such
other place as shall be determined or approved by the Company or the
Guarantor, for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid without
notice if the Holders of all Outstanding Securities of such series or
Tranches are present in person or by proxy and if representatives of the
Company, the Guarantor and the Trustee are present, or if notice is waived
in writing before or after the meeting by the Holders of all Outstanding
Securities of such series, or any Tranche or Tranches thereof, or by such
of them as are not present at the meeting in person or by proxy, and by the
Company, the Guarantor and the Trustee.
SECTION 1203. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, a Person shall be (a) a Holder of one or more Outstanding
Securities of such series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series or Tranches by such Holder or
Holders. The only Persons who shall be entitled to attend any meeting of
Holders of Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the Company and the
Guarantor and their counsel.
SECTION 1204. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and Tranches
with respect to which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a quorum for a meeting
of Holders of Securities of such series and Tranches; provided, however,
that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class, the
Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one
class, shall constitute a quorum. In the absence of a quorum within one
hour of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series and
Tranches, be dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for such
period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by Section
1205(e), notice of the reconvening of any meeting adjourned for more than
thirty (30) days shall be given as provided in Section 106 not less than
ten (10) days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series and Tranches which shall constitute a
quorum.
Except as limited by Section 1102, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of the series and Tranches with respect to which such meeting
shall have been called, considered as one class; provided, however, that,
except as so limited, any resolution with respect to any action which this
Indenture expressly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as one
class, may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid by the affirmative vote of
the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches, considered as one
class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall be
binding on all the Holders of Securities of the series and Tranches with
respect to which such meeting shall have been held, whether or not present
or represented at the meeting.
SECTION 1205. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be
in person or by proxy; and, to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any future Holder of the
Securities with respect to which it was given unless and until specifically
revoked by the Holder or future Holder (except as provided in Section
104(g)) of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities in regard to proof of the holding
of such Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations and approved by the Company and the Guarantor, the holding
of Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified in
Section 104. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or the Guarantor or by Holders as provided in Section
1202(b), in which case the Company or the Guarantor or the Holders of
Securities of the series and Tranches calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled
to one vote for each One Thousand Dollars ($1,000) principal amount of
Outstanding Securities held or represented by such Holder; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1202 at
which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class; and the meeting may be held as so
adjourned without further notice.
SECTION 1206. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the
signatures of the Holders or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting shall have been
called, held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports of all votes cast
at the meeting. A record in duplicate of the proceedings of each meeting
of Holders shall be prepared by the secretary of the meeting and there
shall be attached to such record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that such notice was given as provided in Section
1202 and, if applicable, Section 1204. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
SECTION 1207. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made, given or
taken by Holders by written instruments as provided in Section 104.
ARTICLE THIRTEEN
Guaranty
SECTION 1301. GUARANTY.
The Guarantor hereby unconditionally guarantees to the
Holder of each Security Outstanding from time to time, and to the Trustee
on behalf of such Holder, the due and punctual payment of the principal of
and premium, if any, and interest, if any, on such Security when and as the
same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption, or otherwise, in
accordance with the terms of such Security and of this Indenture. In case
of the failure of the Company punctually to make any such payment, the
Guarantor shall cause such payment to be made punctually when and as the
same shall become due and payable, as aforesaid, as if such payment were
made by the Company.
The obligations of the Guarantor hereunder shall be absolute
and unconditional irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of such Security or this
Indenture, any failure to enforce the provisions of such Security or this
Indenture, or any waiver, modification or indulgence granted to the Company
with respect thereto, by the Holder of such Security or the Trustee or any
other circumstance which may otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; provided, however, that
notwithstanding the foregoing, no such waiver, modification or indulgence
shall, without the consent of the Guarantor, increase the principal amount
of such Security, or increase the interest rate thereon, or change any
redemption provisions thereof (including any change to increase any premium
payable upon redemption thereof), or change the Stated Maturity thereof, or
increase the principal amount of any Discount Security that would be due
and payable upon a declaration of acceleration of the maturity thereof
pursuant to Article Seven of this Indenture.
The Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or any of
the Holders exhaust any right or take any action against the Company or any
other Person, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to any Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants
that this Guaranty will not be discharged in respect of any Security except
by complete performance of the obligations contained in such Security and
in this Guaranty. This Guaranty shall constitute a guaranty of payment and
not of collection. The Guarantor hereby agrees that, in the event of a
default in payment of principal of, or premium, if any, or interest, if
any, on, any Security, whether at its Stated Maturity, by declaration of
acceleration, call for redemption, or otherwise, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such Security,
subject to the terms and conditions set forth in this Indenture, directly
against the Guarantor to enforce this Guaranty without first proceeding
against the Company.
The obligations of the Guarantor hereunder with respect to
any Security shall be continuing and irrevocable until the date upon which
the entire principal of and premium, if any, and interest, if any, on such
Security have been, or have been deemed pursuant to the provisions of
Article Six to have been, paid in full or otherwise discharged.
The Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Guaranty is endorsed against the
Company in respect of any amounts paid by the Guarantor on account of such
Securities pursuant to the provisions of its Guaranty or this Indenture;
provided, however, that the Guarantor shall not be entitled to enforce or
to receive any payments arising out of, or based upon, such right of
subrogation until the principal of and premium, if any, and interest, if
any, on all Securities issued hereunder shall have been paid in full.
This Guaranty shall remain in full force and effect and
continue notwithstanding any petition filed by or against the Company for
liquidation or reorganization, the Company becoming insolvent or making an
assignment for the benefit of creditors or a receiver or trustee being
appointed for all or any significant part of the Company's assets, and
shall, to the fullest extent permitted by law, continue to be effective or
reinstated, as the case may be, if at any time payment of any Security is,
pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any Holder of such Security, whether
as a "voidable preference", "fraudulent transfer" or otherwise, all as
though such payment or performance had not been made. In the event that
any payment in respect of any Security, or any part thereof, is rescinded,
reduced, restored or returned, such Security shall, to the fullest extent
permitted by law, be reinstated and shall be deemed paid only to the extent
of the amount paid and not so rescinded, reduced, restored or returned.
SECTION 1302. EXECUTION AND DELIVERY OF GUARANTY.
The Guaranty to be endorsed on the Securities of each series
shall include the terms of the Guaranty set forth in Section 1301 and any
other terms that may be set forth as established pursuant to Section 301.
The Guarantor hereby agrees to execute its Guaranty, in a form established
pursuant to Section 201, to be endorsed on each Security authenticated and
delivered by the Trustee.
The Guaranty shall be executed on behalf of the Guarantor by
an Authorized Officer of the Guarantor. The signature of any such officer
on the Guarantee may be manual or facsimile.
A Guaranty bearing the manual or facsimile signature of an
individual who was at the time of execution an Authorized Officer of the
Guarantor shall bind the Guarantor, notwithstanding that such individual
has ceased to be such Authorized Officer prior to the authentication and
delivery of the Security on which such Guaranty is endorsed or was not such
Authorized Officer at the date of such Guaranty.
The delivery of any Security by the Company, after the
authentication and delivery thereof by the Trustee hereunder, shall
constitute due delivery of the Guaranty endorsed thereon on behalf of the
Guarantor. The Guarantor hereby agrees that its Guaranty set forth in
Section 1301 shall remain in full force and effect notwithstanding any
failure to endorse a Guaranty on any Security. The Guarantor by its
execution of this Indenture hereby authorizes the Company, in the name and
on behalf of the Guarantor, to confirm the applicable Guaranty to the
Holder of each Security authenticated and delivered hereunder by its
execution and delivery of each such Security.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, any Guaranties
or any part thereof, or for any claim based thereon or otherwise in respect
thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or
future of the Company or the Guarantor or of any predecessor or successor
corporation of either of them (either directly or through the Company or
the Guarantor, as the case may be, or a predecessor or successor
corporation of either of them), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities and Guaranties are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or
be incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of the Guarantor or of any predecessor
or successor corporation, either directly or indirectly through the Company
or the Guarantor or any predecessor or successor corporation of either of
them, because of the indebtedness hereby authorized or under or by reason
of any of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or Guaranties or to be implied
herefrom or therefrom; and such personal liability, if any, is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution and delivery of this Indenture and the
issuance and delivery of the Securities and the Guaranties.
--------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
DQE CAPITAL CORPORATION
By:--------------------
Name:
Title:
DQE, INC.
By:--------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By:--------------------
Name:
Title:
