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THE WASHINGTON WATER POWER COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
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INDENTURE
DATED AS OF _________ 1, 1998
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THE WASHINGTON WATER POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ___________ __, 1998
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TRUST INDENTURE ACT SECTION INDENTURE SECTION(S)
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Section 310(a)(1) . . . . . . . . . . . . . . . . 809
(a)(2) . . . . . . . . . . . . . . . . 809
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(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) . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . 902
(d) . . . . . . . . . . . . . . . . . 902
Section 314(a) . . . . . . . . . . . . . . . . . 902, 507
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . 801, 803
(b) . . . . . . . . . . . . . . . . . 802
(c) . . . . . . . . . . . . . . . . . 801
(d) . . . . . . . . . . . . . . . . . 801
(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
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PAGE
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Recital of the Company . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. General Definitions . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . 3
Company Order or Company Request . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . 3
Interest . . . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . 4
Fair Value . . . . . . . . . . . . . . . . . . . 4
Governmental Authority . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . 4
Independent Expert's Certificate . . . . . . . . 4
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 . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . 7
Security Register . . . . . . . . . . . . . . . . 7
Security Registrar . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . 7
Successor . . . . . . . . . . . . . . . . . . . . 8
Tranche . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . 8
United States . . . . . . . . . . . . . . . . . . 8
Unpaid Interest . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions . . . . 8
SECTION 103. Content and Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc. to Trustee and Company . . . . 12
SECTION 106. Notice to Holders of Securities; Waiver . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . 13
SECTION 109. Successors and Assigns . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . 14
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . 14
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . 15
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . 15
SECTION 302. Denominations . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Dating,
Certificate of Authentication . . . . . . . 19
SECTION 304. Temporary Securities . . . . . . . . . . . . 22
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost
and Stolen Securities . . . . . . . . . . . 24
SECTION 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . . 25
SECTION 308. Persons Deemed Owners . . . . . . . . . . . 26
SECTION 309. Cancellation by Security Registrar . . . . . 26
SECTION 310. Computation of Interest . . . . . . . . . . 27
SECTION 311. Payment to Be in Proper Currency . . . . . . 27
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. Applicability of Article . . . . . . . . . . 27
SECTION 402. Election to Redeem; Notice to Trustee . . . 27
SECTION 403. Selection of Securities to Be Redeemed . . . 28
SECTION 404. Notice of Redemption . . . . . . . . . . . . 28
SECTION 405. Securities Payable on Redemption Date . . . 30
SECTION 406. Securities Redeemed in Part . . . . . . . . 30
ARTICLE FIVE
COVENANTS
SECTION 501. Payment of Securities. . . . . . . . . . . . 30
SECTION 502. Maintenance of Office or Agency . . . . . . 31
SECTION 503. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . . . . . 31
SECTION 504. Corporate Existence . . . . . . . . . . . . 33
SECTION 505. Maintenance of Properties . . . . . . . . . 33
SECTION 506. Waiver of Certain Covenants . . . . . . . . 33
SECTION 507. Annual Officer's Certificate
as to Compliance. . . . . . . . . . . . . . 34
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Securities . . 34
SECTION 602. Satisfaction and Discharge of Indenture . . 37
SECTION 603. Application of Trust Money . . . . . . . . . 37
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. Events of Default . . . . . . . . . . . . . 38
SECTION 702. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . 40
SECTION 703. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . 41
SECTION 704. Application of Money Collected . . . . . . . 42
SECTION 705. Trustee May File Proofs of Claim . . . . . . 42
SECTION 706. Trustee May Enforce Claims without
Possession of Securities . . . . . . . . . . 43
SECTION 707. Limitation on Suits . . . . . . . . . . . . 43
SECTION 708. Unconditional Right of Holders
to Receive Principal,
Premium and Interest . . . . . . . . . . . . 44
SECTION 709. Restoration of Rights and Remedies . . . . . 44
SECTION 710. Rights and Remedies Cumulative . . . . . . . 44
SECTION 711. Delay or Omission Not Waiver . . . . . . . . 45
SECTION 712. Control by Holders of Securities . . . . . . 45
SECTION 713. Waiver of Past Defaults . . . . . . . . . . 45
SECTION 714. Undertaking for Costs . . . . . . . . . . . 46
SECTION 715. Waiver of Stay or Extension Laws . . . . . . 46
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Certain Duties and Responsibilities . . . . 47
SECTION 802. Notice of Defaults . . . . . . . . . . . . . 48
SECTION 803. Certain Rights of Trustee . . . . . . . . . 48
SECTION 804. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . 50
SECTION 805. May Hold Securities . . . . . . . . . . . . 50
SECTION 806. Money Held in Trust . . . . . . . . . . . . 50
SECTION 807. Compensation and Reimbursement . . . . . . . 50
SECTION 808. Disqualification; Conflicting Interests . . 51
SECTION 809. Corporate Trustee Required; Eligibility . . 51
SECTION 810. Resignation and Removal;
Appointment of Successor . . . . . . . . . . 52
SECTION 811. Acceptance of Appointment by Successor . . . 54
SECTION 812. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . 55
SECTION 813. Preferential Collection of Claims
against Company . . . . . . . . . . . . . . 55
SECTION 814. Appointment of Authenticating Agent . . . . 56
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
SECTION 901. Lists of Holders . . . . . . . . . . . . . . 58
SECTION 902. Reports by Trustee and Company . . . . . . . 58
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. Company may Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . . 59
SECTION 1002. Successor Substituted . . . . . . . . . . . 60
SECTION 1003. Release of Company upon Conveyance
or Other Transfer . . . . . . . . . . . . . 60
SECTION 1004. Merger into Company . . . . . . . . . . . . 60
SECTION 1005. Transfer of Less than the Entirety . . . . 60
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures without
Consent of Holders . . . . . . . . . . . . 63
SECTION 1102. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . 65
SECTION 1103. Execution of Supplemental Indentures . . . 66
SECTION 1104. Effect of Supplemental Indentures . . . . . 67
SECTION 1105. Conformity with Trust Indenture Act . . . . 67
SECTION 1106. Reference in Securities to
Supplemental Indentures . . . . . . . . . . 67
SECTION 1107. Modification without Supplemental
Indenture . . . . . . . . . . . . . . . . . 67
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. Purposes for Which Meetings May Be Called. 68
SECTION 1202. Call, Notice and Place of Meetings . . . . 68
SECTION 1203. Persons Entitled to Vote at Meetings . . . 69
SECTION 1204. Quorum; Action . . . . . . . . . . . . . . 69
SECTION 1205. Attendance at Meetings; Determination
of Voting Rights;
Conduct and Adjournment of Meetings . . . . 70
SECTION 1206. Counting Votes and Recording
Action of Meetings . . . . . . . . . . . . 71
SECTION 1207. Action without Meeting . . . . . . . . . . 71
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 1301. Liability Solely Corporate . . . . . . . . 72
Signatures . . . . . . . . . . . . . . . . . . . . . . . . 73
INDENTURE, dated as of __________ 1, 1998 between THE
WASHINGTON WATER POWER COMPANY, a corporation organized and
existing under the laws of the State of Washington (hereinafter
sometimes called the "Company"), and The Chase Manhattan Bank, a
New York banking corporation, trustee (hereinafter 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 unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one
or more series as contemplated herein; all acts necessary to make
this Indenture a valid agreement of the Company 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 by and
between the Company and the Trustee that all the Securities are to
be authenticated and delivered subject to the further covenants,
conditions and trusts hereinafter set forth, and the Company hereby
covenants and agrees to and with the Trustee, 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 terms used herein without definition
which are defined in the Uniform Commercial Code as
in effect in any jurisdiction in which any property
of the Company is located shall have the meanings
assigned to them therein with respect to such
property;
(d) 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 from time to time, at the date of the
execution and delivery of this Indenture; provided,
however, that in determining generally accepted
accounting principles applicable to the Company,
effect shall be given, to the extent required, to any
order, rule or regulation of any administrative
agency, regulatory authority or other governmental
body having jurisdiction over the Company; 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 or an Affiliate of the Company) 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 or the Corporate
Secretary or any other duly authorized officer, agent or attorney-
in-fact of the Company named in an Officer's Certificate signed by
any of such corporate officers.
"BOARD OF DIRECTORS" means either the board of
directors of the Company 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 to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
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, per-
forming 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
request or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution and delivery of this Indenture is located at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"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.
"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.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company or other counsel
acceptable to the Trustee 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, 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; and
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, authorized by the Company to pay the principal of and
premium, if any, or interest, if any, on any Securities on behalf
of the Company.
"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, all
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 any 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 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 to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied
with, it being understood that in the case of any such application
or request as to which the furnishing of such documents is speci-
fically 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, upon a certificate of, or
representations by, an officer or officers of the Company, 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 any Person is required to make,
give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
(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.
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 and the Company, if made in the
manner provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section 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, the
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 or the
Company 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 authenticated and
delivered by the Trustee in exchange for Outstanding Securities of
such series or Tranche.
(g) The Company may, at its option, by
Company Order, 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 the Company shall have no obligation to do so;
provided, however, that the Company may not 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 AND COMPANY.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with, the Trustee by any Holder or
by the Company, or the Company by the Trustee or by any Holder,
shall be sufficient for every purpose hereunder (unless otherwise
expressly provided herein) if the same shall be in writing and
delivered personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission, telex or
other direct written electronic means to such telephone number or
other electronic communications address set forth opposite such
parties name below or as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges prepaid, to
the applicable address set opposite such party's name below or to
such other address as either party hereto may from time to time
designate:
If to the Trustee, to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx - 15th Floor
New York, New York 10001
Attention: Global Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to:
The Washington Water Power Company
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
Telephone: (509) 482-____
Facsimile: (000) 000-0000
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.
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 shall bind its successors and assigns, whether so expressed
or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Securities shall be 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 or the Securities, express
or implied, shall give to any Person, other than the parties
hereto, their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities 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 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, consis-
tently herewith, be determined by the officers executing such Secu-
rities, as evidenced by their execution of the Securities. If the
form or forms of Securities of any series are established in a
Board Resolution or in an Officer's Certificate, such Board
Resolution and Officer's Certificate, if any, shall be delivered to
the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of
such Securities.
The Securities of each series shall be issuable in
registered form without coupons. The definitive Securities shall
be produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be
in substantially the form set forth below:
This is one of the Securities of the series desig-
nated 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 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:
(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,
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 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 ac-
celeration 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; and
(u) 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 pursuant to 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, CERTIFICATE OF AUTHENTICATION.
Unless otherwise provided 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 of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments estab-
lishing the form or forms and terms of such series,
as provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities 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 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) Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect
that:
(i) the form or forms of such Securities
have been duly authorized by the Company and have
been established in conformity with the provisions
of this Indenture;
(ii) the terms of such Securities have been
duly authorized by the Company and 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 will constitute
valid obligations of the Company, entitled to the
benefits provided by this Indenture;
provided, however, that, with respect to 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 such Securities
(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, Counsel may opine
that:
(x) when the terms of such Securities shall
have been established pursuant to a Company Order
or Orders or pursuant to such procedures as may be
specified from time to time by a Company Order or
Orders, all as contemplated by and in accordance
with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have
been duly authorized by the Company and will have
been established in conformity with the provisions
of this Indenture; and
(y) when such Securities shall have been
authenticated and delivered by the Trustee in
accordance with this Indenture and the Company
Order or Orders or the specified procedures
referred to in paragraph (x) above and issued and
delivered by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, such Securities will constitute valid
obligations of the Company, 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 of any of such Securities, 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 do not violate any
applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company.
If the form of terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such 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 shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, no Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication sub-
stantially 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 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, with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by
their execution of such Securities; 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 Holder
thereof, for definitive Securities of such series or Tranche 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 shall, except as aforesaid, 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.
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 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
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 surrender 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, 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.
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 denomina-
tions and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security surrendered for registration of
transfer or for exchange shall (if so required by the Company, the
Trustee or the Security Registrar) be duly endorsed or shall be
accompanied by a written instrument of transfer in form sat-
isfactory to the Company, 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 surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the
same series and Tranche, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership of and
the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to save
each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such Security,
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 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 in its discretion may,
but subject to compliance with the foregoing conditions, 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) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an additional contractual obligation of the
Company, 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 shall be entitled to
all the benefits of this Indenture equally and proportionately with
any and all other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, destroyed,
lost or stolen 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, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of
any Unpaid Interest to the Persons in whose names the
Securities of such series (or their respective Prede-
cessor 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
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 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 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 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 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 surrender of any Security for
registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name any
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 neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to
the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered 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 may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which the
Company shall not have issued and sold, and all 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, and the Security
Registrar shall promptly deliver a certificate of disposition to
the Trustee and the Company. The Security Registrar shall promptly
deliver evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
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 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 recovery by the Trustee, in any currency other than
the Required Currency, except to the extent that such tender or
recovery shall result in the Trustee timely holding the full amount
of the Required Currency then due and payable. If any such tender
or recovery is in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The costs and
risks of any such exchange, including without limitation the risks
of delay and exchange rate fluctuation, shall be borne by the
Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful
misconduct.
ARTICLE 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 shall 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 any
particular 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 or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company
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.
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 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 in respect of such Securities and this Indenture may be
served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of each
such office or agency and prompt notice to the Holders of any such
change in the manner specified in Section 106. If at any time the
Company shall fail to maintain any such required office or agency
in respect of 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 the Company hereby appoints the Trustee as its agent for all
such purposes in any such event.
The Company may also from time to time designate one
or more other offices or agencies with respect to the 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 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 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, in which event the Company 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 shall promptly notify the Trustee of any failure by the
Company (or any other obligor on such Securities) to make any
payment of principal of 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 (or any other obligor upon such
Securities) to make any payment of principal of or
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 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 the Company under Article
Ten, the Company shall do or cause to be done all things necessary
to preserve and keep its corporate existence in full force and
effect.
SECTION 505. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its businesses,
considered as a whole, to be maintained and kept in good condition,
repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort to
cause) to be made such repairs, renewals, replacements, betterments
and improvements thereof, as, in the judgment of the Company, may
be necessary in order that the operation of such properties,
considered as a whole, may be conducted in accordance with common
industry practice; provided, however, that nothing in this Section
shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its
properties; and provided, further, that nothing in this Section
shall prevent the Company from selling, transferring or otherwise
disposing of, or causing the sale, transfer or other disposition
of, any of its properties.
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 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 505 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.
SECTION 507. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than December 1 in each year, commencing
December 1, 1998, the Company shall deliver to the Trustee an
Officer's Certificate which need not comply with Section 102,
executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture, such
compliance to be determined without regard to any period of grace
or requirement of notice under this Indenture.
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 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), 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 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,
but the indebtedness of the Company 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, 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 Company's indebtedness shall have
been satisfied and discharged, all as provided in this Section, do
not mature and are not to be redeemed within the sixty (60) day
period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as promptly
as practicable, give a notice, in the same manner as a notice of
redemption with respect to such 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 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 its representative
under any applicable Federal or State bankruptcy, insolvency or
other similar law or (ii) are unable to apply any money held by the
Trustee as provided in this Section and Section 603 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 Company's indebtedness in respect thereof shall
retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in respect
of any Security shall be subject to the provisions of the last
paragraph of Section 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 has paid or caused to be
paid all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 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 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 such instruments as, in the judgment of the Company, 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 sixty (60) 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 within three
(3) Business Days after its Maturity; 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 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 ninety
(90) days after there has been given, by registered or certi-
fied mail, to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least twenty-five per
centum (25%) 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 within such
period and is being diligently pursued; or
(d) a default under any bond, debenture,
note or other evidence of indebtedness for money borrowed by
the Company (including a default with respect to Securities of
any series other than such series) or under any mortgage,
indenture or other instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness
for money borrowed by the Company (including this Indenture),
whether such indebtedness now exists or shall hereafter be
created, which default (1) shall constitute a failure to make
any payment in excess of $5,000,000 of the principal of or
interest on such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto
or (2) shall have resulted in such indebtedness in an amount
in excess of $10,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise have
become due and payable, without such payment having been made,
such indebtedness having been discharged, or such acceleration
having been rescinded or annulled, as the case may be, within
a period of ninety (90) days after there shall have been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least twenty-five per centum (25%) in principal amount of the
Outstanding Securities of such series a written notice
specifying such default and requiring the Company to cause
such payment to be made, such indebtedness to be discharged or
such acceleration to be rescinded or annulled, as the case may
be, and stating that such notice is a Notice of Default
hereunder; or
(e) the entry by a court having jurisdiction
in the premises of (i) a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons other than
the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any substantial part
of its property, or ordering the winding-up or liquidation of
its affairs, and any such decree or order for relief or any
such other decree or order shall have remained unstayed and in
effect for a period of ninety (90) consecutive days; or
(f) the commencement by the Company of a
voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in 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 it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of
any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally
as they become due, or the authorization of such action by the
Board of Directors.
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 per centum (33%) in principal amount of
the Outstanding Securities of such series 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 Outstanding Securities of such series to be due
and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon 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 per centum (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
with respect to Securities of any series 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 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 thereon at
the rate or rates prescribed therefor in such
Securities;
(iii) interest upon overdue interest at the rate
or rates prescribed therefor in such Securities, to
the extent that payment of such interest is lawful;
and
(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
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 or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If 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 Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 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 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 any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(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, seques-
trator 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 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 Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class, shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have
offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with
such request;
(d) the Trustee for 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 Outstanding Securities of
all series in respect of which an Event of Default shall have
occurred and be continuing, considered as one class.
it being understood and intended that no one or more of 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
of the Holders of Securities of such 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 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 Outstanding Securities of such
series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series; provided, however, that
if an Event of Default shall have occurred and be continuing with
respect to more than one series of Securities, the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of the
Securities of any one of such series; and provided, 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, and
(b) 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
Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series 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, 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 affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture; but
no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 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, 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 per centum (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, the
Company shall not 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 the Company, 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
Outstanding Securities of any one or more series, 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 mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or as otherwise expressly
provided herein, and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence is
specifically prescribed herein) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(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, 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, any other obligor on such Securities
or by any Holder of such Securities 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.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES.
The recitals contained herein and in the Securities
(except the Trustee's certificates of authentication) shall be
taken as the statements of the Company, and neither the Trustee nor
any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities
or the proceeds thereof.
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 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.
SECTION 807. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by it here-
under (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for all reason-
able 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
may be attributable to its negligence, wilful misconduct or
bad faith; and
(c) 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 here-
under 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 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 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. For purposes of
clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act, the Indenture, dated as of July 1, 1988,
between the Company and The Chase Manhattan Bank (formerly known as
Chemical Bank), trustee, shall be deemed to be specifically
described herein.
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 Fifty Million Dollars
($50,000,000) 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. 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 Outstanding Securities of such
series delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
808 after written request therefor by the Company 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 or by any such Holder, or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a re-
ceiver of the Trustee or of its property shall be ap-
pointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all 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 in
clause (y) in subsection (d) of this Section), with respect to the
Securities of one or more series, the Company, by a Board
Resolution, 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 Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the
applicable requirements of Section 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.
If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders
and accepted appointment in the manner required by Section 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 shall have
delivered to the Trustee with respect to the Securities of one or
more series (i) a Board Resolution appointing a successor Trustee
or Trustees with respect to that or those 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 that or those 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 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).
(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 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 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 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
(1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee
and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts here-
under 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 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 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 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 or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "CASH TRANSACTION" means any
transaction in which full payment for goods or securities sold
is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) the term "SELF-LIQUIDATING PAPER" means
any draft, xxxx of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company or such
obligor for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company or such obligor arising
from the making, drawing, negotiating or incurring of the
draft, xxxx of exchange, acceptance or obligation.
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 shall
at all times be a corporation organized and doing business under
the laws of the United States, any State or Territory thereof or
the District of Columbia or the Commonwealth of Puerto Rico,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than Fifty Million Dollars
($50,000,000) and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in
the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to 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 and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services
under this Section.
The provisions of Sections 308, 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 AND COMPANY
SECTION 901. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31
in each year, commencing December 31, 1998, and within 30 days of
such other times as the Trustee may request in writing, the Company
shall furnish or cause to be furnished to the Trustee information
as to the names and addresses of the Holders, as of a date no more
than fifteen (15) days prior to the date such information is so
furnished, 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 AND COMPANY.
Not later than November 15 in each year, commencing
November 15, 1998, 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 September 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 shall file with the
Trustee (within thirty (30) days after filing with the Commission
in the case of reports which pursuant to the Trust Indenture Act
must be filed with the Commission and furnished to the Trustee) and
transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be
required by the Trust Indenture Act. The Company 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 MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not 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 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, 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
corporation 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 covenant and condition
of this Indenture to be performed or observed by the Company;
and
(b) the Company 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.
Anything in this Indenture to the contrary
notwithstanding, the conveyance or other transfer, or lease, by the
Company of all of its facilities (a) for the generation of electric
energy, (b) for the transmission of electric energy or (c) for the
distribution of electric energy and/or natural gas, in each case
considered alone, or all of its facilities described in clauses (a)
and (b), considered together, or all of its facilities described in
clauses (b) and (c), considered together, shall in no event be
deemed to constitute a conveyance or other transfer, or lease, of
all the properties of the Company, as or substantially as an
entirety, unless, immediately following such conveyance, transfer
or lease, the Company shall own no unleased properties in the other
such categories of property not so conveyed or otherwise
transferred or leased. The character of particular facilities
shall be determined by reference to the Uniform System of Accounts
prescribed for public utilities and licensees subject to the
Federal Power Act, as amended, to the extent applicable.
SECTION 1002. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger or any conveyance
or other transfer of all the properties of the Company, 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 under this Indenture
with the same effect as if such Successor had been named as the
"Company" 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.
SECTION 1003. RELEASE OF COMPANY 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 (such term 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 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.
SECTION 1004. MERGER INTO COMPANY.
Nothing in this Indenture shall be deemed to prevent
or restrict any consolidation or merger after the consummation of
which the Company would be the surviving or resulting entity or any
conveyance or other transfer, or lease of any part of the
properties of the Company which does not constitute the entirety,
or substantially the entirety, thereof.
SECTION 1005. TRANSFER OF LESS THAN THE ENTIRETY.
(a) If the Company shall have conveyed or otherwise
transferred any part of its properties which does not constitute
the entirety, or substantially the entirety, thereof to another
Person meeting the requirements set forth in clause (a) of the
first paragraph of Section 1001 and if:
(i) the transferee of such part of the
properties of the Company shall have executed and delivered to
the Trustee an indenture supplemental hereto, in form
reasonably satisfactory to the Trustee, which contains an
assumption by such transferee of 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 covenant and condition of this Indenture
to be performed or observed by the Company;
(ii) there shall have been delivered to the
Trustee an Independent Expert's Certificate
(A) describing the property so conveyed or
otherwise transferred (such description of property
to be made by reference either to specific items,
units and/or elements of property or portions
thereof, on a percentage or Dollar basis, or to
properties reflected in specified accounts in the
Company's books of account or portions thereof, on a
Dollar basis); provided, however, that such property
shall be identified in such certificate as facilities
for the generation, transmission or distribution of
electric energy or for the storage, transportation or
distribution of natural gas;
(B) stating, in the judgment of the signers,
the Fair Value to the transferee of the property so
conveyed or otherwise transferred; provided, however,
that there shall be excluded from the property so
evaluated any property subject to any mortgage, deed
of trust, security interest or other lien which
secures indebtedness for borrowed money or for the
deferred purchase price of property;
(C) stating an amount equal to seventy
percent (70%) of the amount stated pursuant to clause
(B) above;
(D) stating an amount equal to the aggregate
principal amount of the Securities then Outstanding;
and
(E) stating that the amount stated pursuant
to clause (D) above does not exceed the amount stated
pursuant to clause (C) above; and
(iii) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel
each of which shall state that such conveyance or other
transfer and such supplemental indenture comply with this
Section and that all conditions precedent relating to such
transactions provided for in this Section and otherwise in
this Indenture have been complied with;
then, upon the satisfaction of all such conditions,
(x) the Company shall be released and
discharged from all obligations and covenants under this
Indenture and on and under all Securities then Outstanding
(unless the Company 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; and
(y) if the Company shall have been released
and discharged as contemplated in clause (x) above, such
transferee shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such transferee had been
named the "Company" herein; and without limiting the
generality of the foregoing, such transferee shall be deemed a
"Successor" for purposes of Section 1002 and for all other
purposes of this Indenture.
(b) For purposes of this Section:
"FAIR VALUE" means the fair value of such property
so conveyed or otherwise transferred as may be
determined by reference to (a) the amount which would
be likely to be obtained in an arm's-length
transaction with respect to such property between an
informed and willing buyer and an informed and
willing seller, under no compulsion, respectively, to
buy or sell, (b) the amount of investment with
respect to such property which, together with a
reasonable return thereon, would be likely to be
recovered through ordinary business operations or
otherwise, (c) the cost, accumulated depreciation and
replacement cost with respect to such property and/or
(d) any other relevant factors; provided, however,
that (x) the Fair Value of property shall be
determined without deduction for any mortgage, deed
of trust, pledge, security interest, encumbrance,
lease, reservation, restriction, servitude, charge or
similar right or any other lien of any kind on such
property and (y) the Fair Value to the transferee of
any property shall not reflect any reduction relating
to the fact that such property may be of less value
to a Person which is not the owner or operator of the
property or any portion thereof than to a Person
which is such owner or operator. Fair Value may be
determined, without physical inspection, by the use
of accounting and engineering records and other data
maintained by the Company or the transferee or
otherwise available to the Expert certifying the
same.
"INDEPENDENT EXPERT'S CERTIFICATE" means a
certificate signed by an authorized officer of the
transferee and by an Independent Expert (which
Independent Expert shall be selected either by the
board of directors or by an authorized officer of the
transferee, the execution of such certificate by such
authorized officer to be conclusive evidence of such
selection) and delivered to the Trustee. For
purposes of this definition, (a) "EXPERT" means a
Person which is an engineer, appraiser or other
expert and which, with respect to any certificate to
be signed by such Person and delivered to the
Trustee, is qualified to pass upon the matter set
forth in such certificate; (b) "ENGINEER" means a
Person engaged in the engineering profession or
otherwise qualified to pass upon engineering matters
(including, but not limited to, a Person licensed as
a professional engineer, whether or not then engaged
in the engineering profession) and (c) "APPRAISER"
means a Person engaged in the business of appraising
property or otherwise qualified to pass upon the Fair
Value or fair market value of property.
"INDEPENDENT", when applied to any Expert, means such
a Person who (a) is in fact independent, (b) does not
have any direct material financial interest in the
transferee or in any obligor upon the Securities or
in any Affiliate of the transferee, (c) is not
connected with the transferee or such other obligor
as an officer, employee, promoter, underwriter,
trustee, partner, director or any person performing
similar functions and (d) is approved by the Trustee
in the exercise of reasonable care.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and
the Trustee, at any time and from time to time, may enter into one
or more indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Ten; or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all
Holders or for the benefit of the Holders of, or to
remain in effect only so long as there shall be
Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof, or
to surrender any right or power herein conferred upon
the Company; or
(c) to 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 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 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 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 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 make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions 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 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 and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to amend this Indenture to effect
such changes or elimination.
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 de-
livered to the Company and the Trustee, the Company 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 premium, if any, or 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 in-
denture, 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 the
consent of the Holders of all Securities of such
series or Tranche) 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 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 any such supplemental indenture may be
prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of
such series 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 a Board Resolution or an Officer's Certificate pursuant
to a supplemental indenture or a Board Resolution as contemplated
by Section 301, and not in a supplemental indenture, additions to,
changes in or the elimination of any of such terms may be effected
by means of a supplemental Board Resolution or a supplemental
Officer's Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such supplemental
Board Resolution or supplemental Officer's Certificate shall not be
accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to
be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee, any such
supplemental Board Resolution or supplemental Officer's Certificate
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 or by
the Holders of thirty-three per centum (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 to call such a meeting, the Company 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, 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 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, 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 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 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 its 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 lim-
ited, 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, the holding of
Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders as pro-
vided in Section 1202(b), in which case the Company 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
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 1301. 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, or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented
thereby, or upon any obligation, covenant or agreement under this
Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of
any predecessor or successor corporation (either directly or
through the Company or a predecessor or successor corporation),
whether by virtue of any constitutional provision, statute or rule
of law or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations
and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or director,
past, present or future, of the Company or of any predecessor or
successor corporation, either directly or indirectly through the
Company or any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of the
obligations, covenants or agreements contained in this Indenture or
in any of the Securities 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 of
the Securities.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first
above written.
THE WASHINGTON WATER POWER COMPANY
By:
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Name: X.X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, Trustee
By:
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Name:
Title:
