Exhibit 4(a)
OHIO POWER COMPANY
AND
THE FIRST NATIONAL BANK OF CHICAGO
AS TRUSTEE
--------------------
INDENTURE
Dated as of October 1, 1995
--------------------
Junior Subordinated Debentures
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13
311(b) 7.13
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(c)
5.02(d)
312(c) 5.02(e)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.06(a)
314(d) Inapplicable
314(e) 13.06(b)
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01(a)
315(d) 7.01(b)
315(e) 6.08
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
TABLE OF CONTENTS
This Table of Contents does not constitute part of the
Indenture and should not have any bearing upon the
interpretation of any of its terms or provisions
RECITALS:
Purpose of Indenture. . . . . . . . . . . . . . . . . . . .1
Compliance with legal requirements. . . . . . . . . . . . .1
Purpose of and consideration for Indenture. . . . . . . . .1
ARTICLE ONE - DEFINITIONS
Section 1.01
Certain terms defined, other terms defined
in the Trust Indenture Act of 1939,
as amended, or by reference therein in
the Securities Act of 1933, as amended,
to have the meanings assigned therein
Affiliate. . . . . . . . . . . . . . . . . . . . . . .2
Authenticating Agent . . . . . . . . . . . . . . . . .2
Board of Directors . . . . . . . . . . . . . . . . . .2
Board Resolution . . . . . . . . . . . . . . . . . . .2
Business Day . . . . . . . . . . . . . . . . . . . . .3
Certificate. . . . . . . . . . . . . . . . . . . . . .3
Company. . . . . . . . . . . . . . . . . . . . . . . .3
Corporate Trust Office . . . . . . . . . . . . . . . .3
Debenture or Debentures. . . . . . . . . . . . . . . .3
Debentureholder. . . . . . . . . . . . . . . . . . . .3
Default. . . . . . . . . . . . . . . . . . . . . . . .3
Depository . . . . . . . . . . . . . . . . . . . . . .3
Event of Default . . . . . . . . . . . . . . . . . . .4
Global Debenture . . . . . . . . . . . . . . . . . . .4
Governmental Obligations . . . . . . . . . . . . . . .4
Indenture. . . . . . . . . . . . . . . . . . . . . . .4
Interest Payment Date. . . . . . . . . . . . . . . . .4
Officers' Certificate. . . . . . . . . . . . . . . . .5
Opinion of Counsel . . . . . . . . . . . . . . . . . .5
Outstanding. . . . . . . . . . . . . . . . . . . . . .5
Predecessor Debenture. . . . . . . . . . . . . . . . .5
Responsible Officer. . . . . . . . . . . . . . . . . .6
Senior Indebtedness. . . . . . . . . . . . . . . . . .6
Subsidiary . . . . . . . . . . . . . . . . . . . . . .6
Trustee. . . . . . . . . . . . . . . . . . . . . . . .6
Trust Indenture Act. . . . . . . . . . . . . . . . . .7
ARTICLE TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBENTURES
Section 2.01
Designation, terms, amount, authentication
and delivery of Debentures . . . . . . . . . . . . . .7
Section 2.02
Form of Debenture and Trustee's certificate. . . . . .8
Section 2.03
Date and denominations of Debentures,
and provisions for payment of principal,
premium and interest . . . . . . . . . . . . . . . . .9
Section 2.04
Execution of Debentures. . . . . . . . . . . . . . . 10
Section 2.05
Exchange of Debentures
(a) Registration and transfer
of Debentures . . . . . . . . . . . . . . . . . 12
(b) Debenture Register; Debentures to be accompanied
by proper instruments of transfer . . . . . . . 12
(c) Charges upon exchange, transfer or
registration of Debentures. . . . . . . . . . . 12
(d) Restrictions on transfer or
exchange at time of redemption. . . . . . . . . 12
Section 2.06
Temporary Debentures . . . . . . . . . . . . . . . . 13
Section 2.07
Mutilated, destroyed, lost or
stolen Debentures. . . . . . . . . . . . . . . . . . 13
Section 2.08
Cancellation of surrendered Debentures . . . . . . . 14
Section 2.09
Provisions of Indenture and Debentures
for sole benefit of parties and
Debentureholders . . . . . . . . . . . . . . . . . . 14
Section 2.10
Appointment of Authenticating Agent. . . . . . . . . 14
Section 2.11
Global Debenture
(a) Authentication and Delivery;
Legend. . . . . . . . . . . . . . . . . . . . . 15
(b) Transfer of Global Debenture. . . . . . . . . . 15
(c) Issuance of Debentures in
Definitive Form . . . . . . . . . . . . . . . . 16
ARTICLE THREE - REDEMPTION OF DEBENTURES AND
SINKING FUND PROVISIONS
Section 3.01
Redemption of Debentures . . . . . . . . . . . . . . 16
Section 3.02
(a) Notice of redemption. . . . . . . . . . . . . . 16
(b) Selection of Debentures in case
less than all Debentures to be
redeemed. . . . . . . . . . . . . . . . . . . . 17
Section 3.03
(a) When Debentures called for
redemption become due and payable . . . . . . . 18
(b) Receipt of new Debenture upon
partial payment . . . . . . . . . . . . . . . . 18
Section 3.04
Sinking Fund for Debentures. . . . . . . . . . . . . 18
Section 3.05
Satisfaction of Sinking Fund
Payments with Debentures . . . . . . . . . . . . . . 19
Section 3.06
Redemption of Debentures for
Sinking Fund . . . . . . . . . . . . . . . . . . . . 19
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Payment of principal (and premium
if any) and interest on Debentures . . . . . . . . . 19
Section 4.02
Maintenance of office or agency for
payment of Debentures, designation of
office or agency for payment,
registration, transfer and exchange
of Debentures. . . . . . . . . . . . . . . . . . . . 19
Section 4.03
(a) Duties of paying agent. . . . . . . . . . . . . 20
(b) Company as paying agent . . . . . . . . . . . . 20
(c) Holding sums in trust . . . . . . . . . . . . . 21
Section 4.04
Appointment to fill vacancy in
office of Trustee. . . . . . . . . . . . . . . . . . 21
Section 4.05
Restriction on consolidation,
merger or sale . . . . . . . . . . . . . . . . . . . 21
ARTICLE FIVE - DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to furnish Trustee information
as to names and addresses of
Debentureholders . . . . . . . . . . . . . . . . . . 21
Section 5.02
(a) Trustee to preserve information
as to names and addresses of
Debentureholders received by it
in capacity of paying agent . . . . . . . . . . 22
(b) Trustee may destroy list of
Debentureholders on certain
conditions. . . . . . . . . . . . . . . . . . . 22
(c) Trustee to make information as to
names and addresses of Debentureholders
available to "applicants" to mail
communications to Debentureholders in
certain circumstances . . . . . . . . . . . . . 22
(d) Procedure if Trustee elects not to
make information available to
applicants. . . . . . . . . . . . . . . . . . . 22
(e) Company and Trustee not accountable
for disclosure of information . . . . . . . . . 23
Section 5.03
(a) Annual and other reports to be filed
by Company with Trustee . . . . . . . . . . . . 23
(b) Additional information and reports
to be filed with Trustee and
Securities and Exchange Commission. . . . . . . 23
(c) Summaries of information and reports
to be transmitted by Company to
Debentureholders. . . . . . . . . . . . . . . . 23
(d) Annual Certificate to be furnished
to Trustee. . . . . . . . . . . . . . . . . . . 24
Section 5.04
(a) Trustee to transmit annual report
to Debentureholders . . . . . . . . . . . . . . 24
(b) Trustee to transmit certain further
reports to Debentureholders . . . . . . . . . . 25
(c) Copies of reports to be filed with
stock exchanges and Securities and
Exchange Commission . . . . . . . . . . . . . . 25
ARTICLE SIX - REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT
Section 6.01
(a) Events of default defined . . . . . . . . . . . 25
(b) Acceleration of maturity
upon Event of Default . . . . . . . . . . . . . 27
(c) Waiver of default and rescission
of declaration of maturity. . . . . . . . . . . 27
(d) Restoration of former position
and rights upon curing default. . . . . . . . . 27
Section 6.02
(a) Covenant of Company to pay to
Trustee whole amount due on
Debentures on default in payment
of interest or principal (and
premium, if any). . . . . . . . . . . . . . . . 28
(b) Trustee may recover judgment for
whole amount due on Debentures on
failure of Company to pay . . . . . . . . . . . 28
(c) Billing of proof of claim by Trustee
in bankruptcy, reorganization or
receivership proceeding . . . . . . . . . . . . 28
(d) Rights of action and of asserting
claims may be enforced by Trustee
without possession of Debentures. . . . . . . . 29
Section 6.03
Application of monies collected by Trustee . . . . . 29
Section 6.04
Limitation on suits by holders of Debentures . . . . 30
Section 6.05
(a) Remedies Cumulative . . . . . . . . . . . . . . 30
(b) Delay or omission in exercise
of rights not waiver of default . . . . . . . . 31
Section 6.06
Rights of holders of majority in
principal amount of Debentures to
direct trustee and to waive defaults . . . . . . . . 31
Section 6.07
Trustees to give notice of defaults
known to it, but may withhold in
certain circumstances. . . . . . . . . . . . . . . . 31
Section 6.08
Requirements of an undertaking to pay
costs in certain suits under Indenture
or against Trustee . . . . . . . . . . . . . . . . . 32
ARTICLE SEVEN - CONCERNING THE TRUSTEE
Section 7.01
(a) Upon Event of Default occurring and
continuing, Trustee shall exercise powers
vested in it, and use same degree of
care and skill in their exercise, as
prudent individual will use . . . . . . . . . . 32
(b) Trustee not relieved from liability
for negligence or willful misconduct
except as provided in this section. . . . . . . 33
(1) Prior to Event of Default and
after the curing of all Events of
Default which may have occurred
(i) Trustee not liable except for
performance of duties specifically
set forth
(ii) In absence of bad faith, Trustee
may conclusively rely on
certificates or opinions furnished
it hereunder,subject to duty to
examine the same if specifically
required to be furnished to it
(2) Trustee not liable for error of judgment made
in good faith by Responsible Officer unless
Trustee negligent
(3) Trustee not liable for action or non-action
in accordance with direction of holders
of majority in principal amount of
Debentures
(4) Trustee need not expend own funds without
adequate indemnity
Section 7.02
Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or presented. . . . 34
(b) Sufficient evidence by certain
instruments provided for. . . . . . . . . . . . 34
(c) Trustee may consult with counsel and act
on advice or Opinion of Counsel . . . . . . . . 34
(d) Trustee may require indemnity from
Debentureholders. . . . . . . . . . . . . . . . 34
(e) Trustee not liable for actions in good
faith believed to be authorized . . . . . . . . 35
(f) Trustee not bound to investigate facts or
matters stated in certificates, etc. unless
requested in writing by Debentureholders. . . . 35
(g) Trustee may perform duties directly or
through agents or attorneys . . . . . . . . . . 35
Section 7.03
(a) Trustee not liable for recitals in
Indenture or in Debentures. . . . . . . . . . . 35
(b) No representations by Trustee as to
validity or Indenture or of Debentures. . . . . 35
(c) Trustee not accountable for use of
Debentures or proceeds. . . . . . . . . . . . . 35
Section 7.04
Trustee, paying agent or Debenture
Registrar may own Debentures . . . . . . . . . . . . 35
Section 7.05
Monies received by Trustee to be held
in Trust without interest. . . . . . . . . . . . . . 35
Section 7.06
(a) Trustee entitled to compensation,
reimbursement and indemnity . . . . . . . . . . 36
(b) Obligations to Trustee to be
secured by lien prior to
Debentures. . . . . . . . . . . . . . . . . . . 36
Section 7.07
Right of Trustee to rely on certificate
of officers of Company where no other
evidence specifically prescribed . . . . . . . . . . 36
Section 7.08
Trustee acquiring conflicting interest
to eliminate conflict or resign. . . . . . . . . . . 36
Section 7.09
Requirements for eligibility of
trustee. . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.10
(a) Resignation of Trustee and
appointment of successor. . . . . . . . . . . . 37
(b) Removal of Trustee by Company
or by court on Debentureholders'
application . . . . . . . . . . . . . . . . . . 37
(c) Removal of Trustee by holders
of majority in principal amount
of Debentures . . . . . . . . . . . . . . . . . 38
(d) Time when resignation or removal
of Trustee effective. . . . . . . . . . . . . . 38
(e) One Trustee for each series . . . . . . . . . . 38
Section 7.11
(a) Acceptance by successor Trustee . . . . . . . . 38
(b) Trustee with respect to less than
all series. . . . . . . . . . . . . . . . . . . 39
(c) Company to confirm Trustee's rights . . . . . . 39
(d) Successor Trustee to be qualified . . . . . . . 40
(e) Notice of succession. . . . . . . . . . . . . . 40
Section 7.12
Successor to Trustee by merger, consolidation
of succession to business. . . . . . . . . . . . . . 40
Section 7.13
Limitations on rights of Trustee as a
creditor to obtain payment of certain
claims . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE EIGHT - CONCERNING THE DEBENTUREHOLDERS
Section 8.01
Evidence of action by Debentureholders . . . . . . . 40
Section 8.02
Proof of execution of instruments and of
holding of Debentures. . . . . . . . . . . . . . . . 41
Section 8.03
Who may be deemed owners of Debentures . . . . . . . 41
Section 8.04
Debentures owned by Company or controlled
or controlling companies disregarded for
certain purposes . . . . . . . . . . . . . . . . . . 42
Section 8.05
Instruments executed by Debentureholders
bind future holders. . . . . . . . . . . . . . . . . 42
ARTICLE NINE - SUPPLEMENTAL INDENTURES
Section 9.01
Purposes for which supplemental indenture
may be entered into without consent of
Debentureholders . . . . . . . . . . . . . . . . . . 42
Section 9.02
Modification of Indenture with consent
of Debentureholders. . . . . . . . . . . . . . . . . 44
Section 9.03
Effect of supplemental indentures. . . . . . . . . . 44
Section 9.04
Debentures may bear notation of changes
by supplemental indentures . . . . . . . . . . . . . 45
Section 9.05
Opinion of Counsel . . . . . . . . . . . . . . . . . 45
ARTICLE TEN - CONSOLIDATION, MERGER AND SALE
Section 10.01
Consolidations or mergers of Company
and sales or conveyances of property
of Company permitted . . . . . . . . . . . . . . . . 45
Section 10.02
(a) Rights and duties of successor company. . . . . 46
(b) Appropriate changes may be made in
phraseology and form of Debentures. . . . . . . 46
(c) Company may consolidate or merge into
itself or acquire properties of other
corporations. . . . . . . . . . . . . . . . . . 46
Section 10.03
Opinion of Counsel . . . . . . . . . . . . . . . . . 46
ARTICLE ELEVEN - SATISFACTION AND DISCHARGE OF INDENTURE:
UNCLAIMED MONIES
Section 11.01
Satisfaction and discharge of Indenture. . . . . . . 47
Section 11.02
Application by Trustee of funds deposited
for payment of Debentures. . . . . . . . . . . . . . 47
Section 11.03
Repayment of monies held by paying agent . . . . . . 48
Section 11.04
Repayment of monies held by Trustee. . . . . . . . . 48
ARTICLE TWELVE - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01
Incorporators, Stockholders, officers and
directors of Company exempt from individual
liability. . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE THIRTEEN - MISCELLANEOUS PROVISIONS
Section 13.01
Successors and assigns of Company
bound by Indenture . . . . . . . . . . . . . . . . . 49
Section 13.02
Acts of board, committee or officer
of successor company valid . . . . . . . . . . . . . 49
Section 13.03
Surrender of powers by Company . . . . . . . . . . . 49
Section 13.04
Required notices or demands may by
served by mail . . . . . . . . . . . . . . . . . . . 49
Section 13.05
Indenture and Debentures to be construed
in accordance with laws of the State
of New York. . . . . . . . . . . . . . . . . . . . . 49
Section 13.06
(a) Officers' Certificate and Opinion of
Counsel to be furnished upon applications
or demands by company . . . . . . . . . . . . . 49
(b) Statements to be included in each
certificate or opinion with respect
to compliance with condition or covenant. . . . 50
Section 13.07
Payments due on non-business days. . . . . . . . . . 50
Section 13.08
Provisions required by Trust Indenture
Act of 1939 to control . . . . . . . . . . . . . . . 50
Section 13.09
Indenture may be executed in counterparts. . . . . . 50
Section 13.10
Separability of Indenture provisions . . . . . . . . 50
Section 13.11
Assignment by Company to subsidiary. . . . . . . . . 51
ARTICLE FOURTEEN - SUBORDINATION OF DEBENTURES
Section 14.01
Agreement of Subordination . . . . . . . . . . . . . 51
Section 14.02
Limitations on payments to Debentureholders. . . . . 51
Section 14.03
Payments in bankruptcy . . . . . . . . . . . . . . . 52
Section 14.04
Subrogation of Debentures. . . . . . . . . . . . . . 53
Section 14.05
Authorization by Debentureholders. . . . . . . . . . 54
Section 14.06
Notice to Trustee. . . . . . . . . . . . . . . . . . 54
Section 14.07
Trustee's relation to Senior Indebtedness. . . . . . 55
Section 14.08
Acts of holders of Senior Indebtedness . . . . . . . 55
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . . 56
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . 56
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . 56
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . 57
THIS INDENTURE, dated as of the 1st day of October, 1995,
between OHIO POWER COMPANY, a corporation duly organized and
existing under the laws of the State of Ohio (hereinafter sometimes
referred to as the "Company"), and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association organized and existing
under the laws of the United States, as trustee (hereinafter
sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to
provide for the issuance of unsecured debentures (hereinafter
referred to as the "Debentures"), in an unlimited aggregate
principal amount to be issued from time to time in one or more
series as in this Indenture provided, as registered Debentures
without coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture;
WHEREAS, the Debentures and the certificate of authentication
to be borne by the Debentures (the "Certificate of Authentication")
are to be substantially in such forms as may be approved by the
Board of Directors (as defined below) or set forth in any indenture
supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the
Debentures issued pursuant hereto, when executed by the Company and
authenticated and delivered by the Trustee as in this Indenture
provided, the valid, binding and legal obligations of the Company,
and to constitute these presents a valid indenture and agreement
according to its terms, have been done and performed or will be
done and performed prior to the issuance of such Debentures, and
the execution of this Indenture has been and the issuance hereunder
of the Debentures has been or will be prior to issuance in all
respects duly authorized, and the Company, in the exercise of the
legal right and power in it vested, executes this Indenture and
proposes to make, execute, issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Debentures are and are to be authenticated, issued and
delivered, and in consideration of the premises, of the purchase
and acceptance of the Debentures by the holders thereof and of the
sum of one dollar ($1.00) to it duly paid by the Trustee at the
execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee,
for the equal and proportionate benefit (subject to the provisions
of this Indenture) of the respective holders from time to time of
the Debentures, without any discrimination, preference or priority
of any one Debenture over any other by reason of priority in the
time of issue, sale or negotiation thereof, or otherwise, except as
provided herein, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. The terms defined in this Section (except as in
this Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture, any
resolution of the Board of Directors of the Company and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section. All other terms used in this Indenture
which are defined in the Trust Indenture Act of 1939, as amended,
or which are by reference in such Act defined in the Securities Act
of 1933, as amended (except as herein otherwise expressly provided
or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this
instrument.
Affiliate:
The term "Affiliate" of the Company shall mean any company at least
a majority of whose outstanding voting stock shall at the time be
owned by the Company, or by one or more direct or indirect
subsidiaries of or by the Company and one or more direct or
indirect subsidiaries of the Company. For the purposes only of
this definition of the term "Affiliate", the term "voting stock",
as applied to the stock of any company, shall mean stock of any
class or classes having ordinary voting power for the election of
a majority of the directors of such company, other than stock
having such power only by reason of the occurrence of a
contingency.
Authenticating Agent:
The term "Authenticating Agent" shall mean an authenticating agent
with respect to all or any of the series of Debentures, as the case
may be, appointed with respect to all or any series of the
Debentures, as the case may be, by the Trustee pursuant to Section
2.10.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of
the Company, or any duly authorized committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification.
Business Day:
The term "business day", with respect to any series of Debentures,
shall mean any day other than a day on which banking institutions
in the Borough of Manhattan, the City and State of New York, are
authorized or obligated by law or executive order to close.
Certificate:
The term "Certificate" shall mean a certificate signed by the
Chairman of the Board, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company. The
Certificate need not comply with the provisions of Section 13.06.
Company:
The term "Company" shall mean Ohio Power Company, a corporation
duly organized and existing under the laws of the State of Ohio,
and, subject to the provisions of Article Ten, shall also include
its successors and assigns.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution of this Indenture is located at The First
National Bank of Chicago, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
Debenture or Debentures:
The term "Debenture" or "Debentures" shall mean any Debenture or
Debentures, as the case may be, authenticated and delivered under
this Indenture.
Debentureholder:
The term "Debentureholder", "holder of Debentures", "registered
holder", or other similar term, shall mean the person or persons in
whose name or names a particular Debenture shall be registered on
the books of the Company kept for that purpose in accordance with
the terms of this Indenture.
Default:
The term "Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an Event of
Default.
Depository:
The term "Depository" shall mean, with respect to Debentures of any
series, for which the Company shall determine that such Debentures
will be issued as a Global Debenture, The Depository Trust Company,
New York, New York, another clearing agency, or any successor
registered as a clearing agency under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.01 or 2.11.
Event of Default:
The term "Event of Default" with respect to Debentures of a
particular series shall mean any event specified in Section 6.01,
continued for the period of time, if any, therein designated.
Global Debenture:
The term "Global Debenture" shall mean, with respect to any series
of Debentures, a Debenture executed by the Company and delivered by
the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with the Indenture, which shall be
registered in the name of the Depository or its nominee.
Governmental Obligations:
The term "Governmental Obligations" shall mean securities that are
(i) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account
of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Governmental Obligation or the specific payment of principal of or
interest on the Governmental Obligation evidenced by such
depository receipt.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as so
amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any
installment of interest on a Debenture of a particular series shall
mean the date specified in such Debenture or in a Board Resolution
or in an indenture supplemental hereto with respect to such series
as the fixed date on which an installment of interest with respect
to Debentures of that series is due and payable.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, the President or a Vice President and by
the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company. Each such certificate shall
include the statements provided for in Section 13.06, if and to the
extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee of or counsel for
the Company. Each such opinion shall include the statements
provided for in Section 13.06, if and to the extent required by the
provisions thereof.
Outstanding:
The term "outstanding", when used with reference to Debentures of
any series, shall, subject to the provisions of Section 8.04, mean,
as of any particular time, all Debentures of that series
theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Debentures theretofore canceled by the
Trustee or any paying agent, or delivered to the Trustee or any
paying agent for cancellation or which have previously been
canceled; (b) Debentures or portions thereof for the payment or
redemption of which monies or Governmental Obligations in the
necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall
have been set aside and segregated in trust by the Company (if the
Company shall act as its own paying agent); provided, however, that
if such Debentures or portions of such Debentures are to be
redeemed prior to the maturity thereof, notice of such redemption
shall have been given as in Article Three provided, or provision
satisfactory to the Trustee shall have been made for giving such
notice; and (c) Debentures in lieu of or in substitution for which
other Debentures shall have been authenticated and delivered
pursuant to the terms of Section 2.07.
Predecessor Debenture:
The term "Predecessor Debenture" of any particular Debenture shall
mean every previous Debenture evidencing all or a portion of the
same debt as that evidenced by such particular Debenture; and, for
the purposes of this definition, any Debenture authenticated and
delivered under Section 2.07 in lieu of a lost, destroyed or stolen
Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
Responsible Officer:
The term "Responsible Officer" when used with respect to the
Trustee shall mean the chairman of the board of directors, the
president, any vice president, the secretary, the treasurer, any
trust officer, any corporate trust officer or any other officer or
assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity with
the particular subject.
Senior Indebtedness:
The term "Senior Indebtedness" of the Company shall mean the
principal of, premium, if any, interest on and any other payment
due pursuant to any of the following, whether outstanding at the
date of execution of this Indenture or thereafter incurred, created
or assumed: (a) all indebtedness of the Company evidenced by notes,
debentures, bonds or other securities sold by the Company for money
or other obligations for money borrowed; (b) all indebtedness of
others of the kinds described in the preceding clause (a) assumed
by or guaranteed in any manner by the Company or in effect
guaranteed by the Company through an agreement to purchase,
contingent or otherwise; (c) all installment purchase agreements
entered into by the Company in connection with revenue bonds issued
by an agency or political subdivision of a state of the United
States of America; and (d) all renewals, extensions or refundings
of indebtedness of the kinds described in either of the preceding
clauses (a), (b) and (c) unless, in the case of any particular
indebtedness, renewal, extension or refunding, the instrument
creating or evidencing the same or the assumption or guarantee of
the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is
pari passu with the Debentures.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a
majority of whose outstanding voting stock shall at the time be
owned by the Company or by one or more Subsidiaries or by the
Company and one or more Subsidiaries. For the purposes only of
this definition of the term "Subsidiary", the term "voting stock",
as applied to the stock of any corporation, shall mean stock of any
class or classes having ordinary voting power for the election of
a majority of the directors of such corporation, other than stock
having such power only by reason of the occurrence of a
contingency.
Trustee:
The term "Trustee" shall mean The First National Bank of Chicago,
and, subject to the provisions of Article Seven, shall also include
its successors and assigns, and, if at any time there is more than
one person acting in such capacity hereunder, "Trustee" shall mean
each such person. The term "Trustee" as used with respect to a
particular series of the Debentures shall mean the trustee with
respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of
Sections 9.01, 9.02, and 10.01, shall mean the Trust Indenture Act
of 1939, as amended and in effect at the date of execution of this
Indenture.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBENTURES
SECTION 2.01. The aggregate principal amount of Debentures
which may be authenticated and delivered under this Indenture is
unlimited.
The Debentures may be issued in one or more series up to the
aggregate principal amount of Debentures of that series from time
to time authorized by or pursuant to a Board Resolution or pursuant
to one or more indentures supplemental hereto, prior to the initial
issuance of Debentures of a particular series. Prior to the
initial issuance of Debentures of any series, there shall be
established in or pursuant to a Board Resolution, and set forth in
an Officers' Certificate, or established in one or more indentures
supplemental hereto:
(1) the title of the Debentures of the series (which
shall distinguish the Debentures of the series from all other
Debentures);
(2) any limit upon the aggregate principal amount of the
Debentures of that series which may be authenticated and
delivered under this Indenture (except for Debentures
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Debentures of that
series);
(3) the date or dates on which the principal of the
Debentures of the series is payable;
(4) the rate or rates at which the Debentures of the
series shall bear interest or the manner of calculation of
such rate or rates, if any;
(5) the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest will
be payable or the manner of determination of such Interest
Payment Dates and the record date for the determination of
holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which,
Debentures of the series may be redeemed, in whole or in part,
at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Debentures of the series pursuant to any sinking fund
or analogous provisions (including payments made in cash in
anticipation of future sinking fund obligations) or at the
option of a holder thereof and the period or periods within
which, the price or prices at which, and the terms and
conditions upon which, Debentures of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the form of the Debentures of the series including
the form of the Certificate of Authentication for such series;
(10) if other than denominations of $25 or any integral
multiple thereof, the denominations in which the Debentures of
the series shall be issuable;
(11) any and all other terms with respect to such series
(which terms shall not be inconsistent with the terms of this
Indenture); and
(12) whether the Debentures are issuable as a Global
Debenture and, in such case, the identity for the Depository
for such series.
All Debentures of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Officers' Certificate setting forth
the terms of the series.
SECTION 2.02. The Debentures of any series and the Trustee's
certificate of authentication to be borne by such Debentures shall
be substantially of the tenor and purport as set forth in one or
more indentures supplemental hereto or as provided in a Board
Resolution and as set forth in an Officers' Certificate, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may
be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock
exchange on which Debentures of that series may be listed, or to
conform to usage.
SECTION 2.03. The Debentures shall be issuable as registered
Debentures and in the denominations of $25 or any integral multiple
thereof, subject to Section 2.01(10). The Debentures of a
particular series shall bear interest payable on the dates and at
the rate or rates specified with respect to that series. The
principal of and the interest on the Debentures of any series, as
well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United
States of America which at the time is legal tender for public and
private debt, at the office or agency of the Company maintained for
that purpose. Each Debenture shall be dated the date of its
authentication.
The interest installment on any Debenture which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date for Debentures of that series shall be paid to the
person in whose name said Debenture (or one or more Predecessor
Debentures) is registered at the close of business on the regular
record date for such interest installment, except that interest
payable on redemption or maturity shall be payable as set forth in
the Officers' Certificate or indenture supplemental hereto
establishing the terms of such series of Debentures.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
for Debentures of the same series (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having been
such holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (1) or clause (2)
below:
(1) The Company may make payment of any Defaulted
Interest on Debentures to the persons in whose names such
Debentures (or their respective Predecessor Debentures) are
registered at the close of business on a special record date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debenture and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days prior to
the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Debentureholder
at his or her address as it appears in the Debenture Register
(as hereinafter defined), not less than 10 days prior to such
special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having
been mailed as aforesaid, such Defaulted Interest shall be
paid to the persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered on such
special record date and shall be no longer payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Debentures in any other lawful manner not
inconsistent with the requirements of any securities exchange
on which such Debentures may be listed, and upon such notice
as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or
more indentures supplemental hereto establishing the terms of any
series of Debentures pursuant to Section 2.01 hereof, the term
"regular record date" as used in this Section with respect to a
series of Debentures with respect to any Interest Payment Date for
such series shall mean either the fifteenth day of the month
immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month,
or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date
is the fifteenth day of a month, whether or not such date is a
business day.
Subject to the foregoing provisions of this Section, each
Debenture of a series delivered under this Indenture upon transfer
of or in exchange for or in lieu of any other Debenture of such
series shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Debenture.
SECTION 2.04. The Debentures shall, subject to the provisions
of Section 2.06, be printed on steel engraved borders or fully or
partially engraved, or legibly typed, as the proper officers of the
Company may determine, and shall be signed on behalf of the Company
by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal attested by its Secretary or
one of its Assistant Secretaries. The signature of the Chairman of
the Board, the President or a Vice President and/or the signature
of the Secretary or an Assistant Secretary in attestation of the
corporate seal, upon the Debentures, may be in the form of a
facsimile signature of a present or any future Chairman of the
Board, President or Vice President and of a present or any future
Secretary or Assistant Secretary and may be imprinted or otherwise
reproduced on the Debentures and for that purpose the Company may
use the facsimile signature of any person who shall have been a
Chairman of the Board, President or Vice President, or of any
person who shall have been a Secretary or Assistant Secretary,
notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered or disposed of such person shall have
ceased to be the Chairman of the Board, President or a Vice
President, or the Secretary or an Assistant Secretary, of the
Company, as the case may be. The seal of the Company may be in the
form of a facsimile of the seal of the Company and may be
impressed, affixed, imprinted or otherwise reproduced on the
Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such
Debentures, executed manually by an authorized signatory of the
Trustee, or by any Authenticating Agent with respect to such
Debentures, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate executed
by the Trustee, or by any Authenticating Agent appointed by the
Trustee with respect to such Debentures, upon any Debenture
executed by the Company shall be conclusive evidence that the
Debenture so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits
of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures of
any series executed by the Company to the Trustee for
authentication, together with a written order of the Company for
the authentication and delivery of such Debentures, signed by its
Chairman of the Board, President or any Vice President and its
Treasurer or any Assistant Treasurer, and the Trustee in accordance
with such written order shall authenticate and deliver such
Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such
Debentures, the Trustee shall be entitled to receive, and (subject
to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the form and terms thereof have
been established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this
Indenture will affect the Trustee's own rights, duties or
immunities under the Debentures and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged
upon presentation thereof at the office or agency of the Company
designated for such purpose, for other Debentures of such series of
authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this
Section. In respect of any Debentures so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in exchange therefor the Debenture
or Debentures of the same series which the Debentureholder making
the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of
Manhattan, the City and State of New York, or such other location
designated by the Company a register or registers (herein referred
to as the "Debenture Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
register the Debentures and the transfers of Debentures as in this
Article provided and which at all reasonable times shall be open
for inspection by the Trustee. The registrar for the purpose of
registering Debentures and transfer of Debentures as herein
provided shall be appointed as authorized by Board Resolution (the
"Debenture Registrar").
Upon surrender for transfer of any Debenture at the office or
agency of the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, or other location as
aforesaid, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of
the transferee or transferees a new Debenture or Debentures of the
same series as the Debenture presented for a like aggregate
principal amount.
All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Debenture
Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Debenture Registrar, duly
executed by the registered holder or by his duly authorized
attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new Debentures
in case of partial redemption of any series, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.
(d) The Company shall not be required (i) to issue, exchange
or register the transfer of any Debentures during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of less than all the outstanding
Debentures of the same series and ending at the close of business
on the day of such mailing, nor (ii) to register the transfer of or
exchange any Debentures of any series or portions thereof called
for redemption. The provisions of this Section 2.05 are, with
respect to any Global Debenture, subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive
Debentures of any series, the Company may execute, and the Trustee
shall authenticate and deliver, temporary Debentures (printed,
lithographed or typewritten) of any authorized denomination, and
substantially in the form of the definitive Debentures in lieu of
which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Debentures, all as
may be determined by the Company. Every temporary Debenture of any
series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Debentures of such
series. Without unnecessary delay the Company will execute and
will furnish definitive Debentures of such series and thereupon any
or all temporary Debentures of such series may be surrendered in
exchange therefor (without charge to the holders), at the office or
agency of the Company designated for the purpose, and the Trustee
shall authenticate and such office or agency shall deliver in
exchange for such temporary Debentures an equal aggregate principal
amount of definitive Debentures of such series, unless the Company
advises the Trustee to the effect that definitive Debentures need
not be executed and furnished until further notice from the
Company. Until so exchanged, the temporary Debentures of such
series shall be entitled to the same benefits under this Indenture
as definitive Debentures of such series authenticated and delivered
hereunder.
SECTION 2.07. In case any temporary or definitive Debenture
shall become mutilated or be destroyed, lost or stolen, the Company
(subject to the next succeeding sentence) shall execute, and upon
its request the Trustee (subject as aforesaid) shall authenticate
and deliver, a new Debenture of the same series bearing a number
not contemporaneously outstanding, in exchange and substitution for
the mutilated Debenture, or in lieu of and in substitution for the
Debenture so destroyed, lost or stolen. In every case the
applicant for a substituted Debenture shall furnish to the Company
and to the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the
Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Debenture and of the
ownership thereof. The Trustee may authenticate any such
substituted Debenture and deliver the same upon the written request
or authorization of any officer of the Company. Upon the issuance
of any substituted Debenture, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected
therewith. In case any Debenture which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debenture, pay or
authorize the payment of the same (without surrender thereof except
in the case of a mutilated Debenture) if the applicant for such
payment shall furnish to the Company and to the Trustee such
security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this
Section in substitution for any Debenture which is mutilated,
destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Debenture shall be found at
any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any
and all other Debentures of the same series duly issued hereunder.
All Debentures shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Debentures, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.08. All Debentures surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the
Trustee for cancellation, or, if surrendered to the Trustee, shall
be canceled by it, and no Debentures shall be issued in lieu
thereof except as expressly required or permitted by any of the
provisions of this Indenture. On request of the Company, the
Trustee shall deliver to the Company canceled Debentures held by
the Trustee. In the absence of such request the Trustee may
dispose of canceled Debentures in accordance with its standard
procedures and deliver a certificate of disposition to the Company.
If the Company shall otherwise acquire any of the Debentures,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures
unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09. Nothing in this Indenture or in the Debentures,
express or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the
holders of the Debentures, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Debentures.
SECTION 2.10. So long as any of the Debentures of any series
remain outstanding there may be an Authenticating Agent for any or
all such series of Debentures which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Debentures of such
series issued upon exchange, transfer or partial redemption
thereof, and Debentures so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Debentures by
the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series except for authentication upon
original issuance or pursuant to Section 2.07 hereof. Each
Authenticating Agent shall be acceptable to the Company and shall
be a corporation which has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the laws of
any jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, and which is otherwise
authorized under such laws to conduct such business and is subject
to supervision or examination by Federal or State authorities. If
at any time any Authenticating Agent shall cease to be eligible in
accordance with these provisions it shall resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility
of any Authenticating Agent, the Trustee may appoint an eligible
successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant to
Section 2.01 that the Debentures of a particular series are to be
issued as a Global Debenture, then the Company shall execute and
the Trustee shall, in accordance with Section 2.04, authenticate
and deliver, a Global Debenture which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal
amount of, all of the Outstanding Debentures of such series, (ii)
shall be registered in the name of the Depository or its nominee,
(iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Debenture may be
transferred, in whole but not in part, only to another nominee of
the Depository or to a successor Depository or to a nominee of such
successor Depository."
(b) Notwithstanding the provisions of Section 2.05, the
Global Debenture of a series may be transferred, in whole but not
in part and in the manner provided in Section 2.05, only to another
nominee of the Depository for such series, or to a successor
Depository for such series selected or approved by the Company or
to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Debentures
notifies the Company that it is unwilling or unable to continue as
Depository for such series or if at any time the Depository for
such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation and a
successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Debentures of such series
and the Company will execute, and subject to Section 2.05, the
Trustee will authenticate and deliver Debentures of such series in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture of such series in exchange
for such Global Debenture. In addition, the Company may at any
time determine that the Debentures of any series shall no longer be
represented by a Global Debenture and that the provisions of this
Section 2.11 shall no longer apply to the Debentures of such
series. In such event the Company will execute, and subject to
Section 2.05, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and
deliver Debentures of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Debenture of such series in exchange for such Global Debenture.
Upon the exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be canceled by the
Trustee. Such Debentures in definitive registered form issued in
exchange for the Global Debenture pursuant to this Section 2.11(c)
shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Debenture Registrar. The Trustee shall deliver such Debentures to
the Depository for delivery to the persons in whose names such
Debentures are so registered.
ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Debentures of any
series issued hereunder on and after the dates and in accordance
with the terms established for such series pursuant to Section 2.01
hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a portion
of the Debentures of any series in accordance with the right
reserved so to do, it shall give notice of such redemption to
holders of the Debentures of such series to be redeemed by mailing,
first class postage prepaid, a notice of such redemption not less
than 30 days and not more than 60 days before the date fixed for
redemption of that series to such holders at their last addresses
as they shall appear upon the Debenture Register. Any notice which
is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such
notice to the holder of any Debenture of any series designated for
redemption in whole or in part, or any defect in the notice, shall
not affect the validity of the proceedings for the redemption of
any other Debentures of such series or any other series. In the
case of any redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Debentures of that
series are to be redeemed, and shall state that payment of the
redemption price of such Debentures to be redeemed will be made at
the office or agency of the Company, upon presentation and
surrender of such Debentures, that interest accrued to the date
fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the
redemption is for a sinking fund, if such is the case. If less
than all the Debentures of a series are to be redeemed, the notice
to the holders of Debentures of that series to be redeemed in whole
or in part shall specify the particular Debentures to be so
redeemed. In case any Debenture is to be redeemed in part only,
the notice which relates to such Debenture shall state the portion
of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such
Debenture, a new Debenture or Debentures of such series in
principal amount equal to the unredeemed portion thereof will be
issued.
(b) If less than all the Debentures of a series are to be
redeemed, the Company shall give the Trustee at least 45 days'
notice in advance of the date fixed for redemption (unless the
Trustee shall agree to a shorter period) as to the aggregate
principal amount of Debentures of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and which
may provide for the selection of a portion or portions (equal to
$25 or any integral multiple thereof, subject to Section 2.01(10))
of the principal amount of such Debentures of a denomination larger
than $25 (subject as aforesaid), the Debentures to be redeemed and
shall thereafter promptly notify the Company in writing of the
numbers of the Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its Chairman of
the Board, its President or any Vice President, instruct the
Trustee or any paying agent to call all or any part of the
Debentures of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice
to be in the name of the Company or its own name as the Trustee or
such paying agent may deem advisable. In any case in which notice
of redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such paying agent, as the
case may be, such Debenture Register, transfer books or other
records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such paying agent to give any notice by mail
that may be required under the provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption
shall have been completed as above provided, the Debentures or
portions of Debentures of the series to be redeemed specified in
such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption and
interest on such Debentures or portions of Debentures shall cease
to accrue on and after the date fixed for redemption, unless the
Company shall default in the payment of such redemption price and
accrued interest with respect to any such Debenture or portion
thereof. On presentation and surrender of such Debentures on or
after the date fixed for redemption at the place of payment
specified in the notice, said Debentures shall be paid and redeemed
at the applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption (but if
the date fixed for redemption is an interest payment date, the
interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record
date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which
is to be redeemed in part only, the Company shall execute and the
Trustee shall authenticate and the office or agency where the
Debenture is presented shall deliver to the holder thereof, at the
expense of the Company, a new Debenture or Debentures of the same
series, of authorized denominations in principal amount equal to
the unredeemed portion of the Debenture so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of
Debentures of a series, except as otherwise specified as
contemplated by Section 2.01 for Debentures of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Debentures of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Debentures of any
series is herein referred to as an "optional sinking fund payment".
If provided for by the terms of Debentures of any series, the cash
amount of any sinking fund payment may be subject to reduction as
provided in Section 3.05. Each sinking fund payment shall be
applied to the redemption of Debentures of any series as provided
for by the terms of Debentures of such series.
SECTION 3.05. The Company (i) may deliver Outstanding
Debentures of a series (other than any previously called for
redemption) and (ii) may apply as a credit Debentures of a series
which have been redeemed either at the election of the Company
pursuant to the terms of such Debentures or through the application
of permitted optional sinking fund payments pursuant to the terms
of such Debentures, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Debentures of such
series required to be made pursuant to the terms of such Debentures
as provided for by the terms of such series; provided that such
Debentures have not been previously so credited. Such Debentures
shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Debentures for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking
fund payment date for any series of Debentures, the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by delivering and crediting Debentures of
that series pursuant to Section 3.05 and the basis for such credit
and will, together with such Officers' Certificate, deliver to the
Trustee any Debentures to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select
the Debentures to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 3.02. Such notice
having been duly given, the redemption of such Debentures shall be
made upon the terms and in the manner stated in Section 3.03.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the
Debentures as follows:
SECTION 4.01. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and
interest on the Debentures of that series at the time and place and
in the manner provided herein and established with respect to such
Debentures.
SECTION 4.02. So long as any series of the Debentures remain
outstanding, the Company agrees to maintain an office or agency,
which if such series of Debentures is not outstanding as a Global
Debenture, shall be in the Borough of Manhattan, the City and State
of New York, with respect to each such series and at such other
location or locations as may be designated as provided in this
Section 4.02, where (i) Debentures of that series may be presented
for payment, (ii) Debentures of that series may be presented as
hereinabove authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of
the Debentures of that series and this Indenture may be given or
served, such designation to continue with respect to such office or
agency until the Company shall, by written notice signed by its
Chairman of the Board, its President or a Vice President and
delivered to the Trustee, designate some other office or agency for
such purposes or any of them. If at any time the Company shall
fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents for all or any series of the Debentures, other than
the Trustee, the Company will cause each such paying agent to
execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of
this Section:
(1) that it will hold all sums held by it as such agent
for the payment of the principal of (and premium, if any) or
interest on the Debentures of that series (whether such sums
have been paid to it by the Company or by any other obligor of
such Debentures) in trust for the benefit of the persons
entitled thereto;
(2) that it will give the Trustee notice of any failure
by the Company (or by any other obligor of such Debentures) to
make any payment of the principal of (and premium, if any) or
interest on the Debentures of that series when the same shall
be due and payable;
(3) that it will, at any time during the continuance of
any failure referred to in the preceding paragraph (a)(2)
above, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such paying agent;
and
(4) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Debentures, it will on or before each
due date of the principal of (and premium, if any) or interest on
Debentures of that series, set aside, segregate and hold in trust
for the benefit of the persons entitled thereto a sum sufficient to
pay such principal (and premium, if any) or interest so becoming
due on Debentures of that series until such sums shall be paid to
such persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it
or any other obligor on such Debentures) to take such action.
Whenever the Company shall have one or more paying agents for any
series of Debentures, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Debentures of
that series, deposit with the paying agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due,
such sum to be held in trust for the benefit of the persons
entitled to such principal, premium or interest, and (unless such
paying agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding,
(i) the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Section 11.04, and (ii) the Company
may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or
direct any paying agent to pay, to the Trustee all sums held in
trust by the Company or such paying agent, such sums to be held by
the Trustee upon the same terms and conditions as those upon which
such sums were held by the Company or such paying agent; and, upon
such payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such
money.
SECTION 4.04. The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.10, a Trustee, so that there shall at
all times be a Trustee hereunder.
SECTION 4.05. The Company will not, while any of the
Debentures remain outstanding, consolidate with, or merge into, or
merge into itself, or sell or convey all or substantially all of
its property to any other company unless the provisions of Article
Ten hereof are complied with.
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) on each regular record date (as
defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of
each series of Debentures as of such regular record date, provided,
that the Company shall not be obligated to furnish or cause to be
furnished such list at any time that the list shall not differ in
any respect from the most recent list furnished to the Trustee by
the Company and (b) at such other times as the Trustee may request
in writing within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, no such list need be furnished for any series
for which the Trustee shall be the Debenture Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the
names and addresses of the holders of Debentures contained in the
most recent list furnished to it as provided in Section 5.01 and as
to the names and addresses of holders of Debentures received by the
Trustee in its capacity as Debenture Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Debenture for a period of at least six months
preceding the date of such application, and such application states
that the applicants desire to communicate with other holders of
Debentures of such series or holders of all Debentures with respect
to their rights under this Indenture or under such Debentures, and
is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of such
application, at its election, either:
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.02; or
(2) inform such applicants as to the approximate number
of holders of Debentures of such series or of all Debentures,
as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in
accordance with the provisions of subsection (a) of this
Section 5.02, and as to the approximate cost of mailing to
such Debentureholders the form of proxy or other
communication, if any, specified in such application.
(d) If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each holder of such series or
of all Debentures, as the case may be, whose name and address
appears in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section
5.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of payment,
or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee
shall mail to such applicants and file with the Securities and
Exchange Commission (the "Commission"), together with a copy of the
material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the
best interests of the holders of Debentures of such series or of
all Debentures, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or
if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Debentureholders with reasonable
promptness after the entry of such order and the renewal of such
tender; otherwise, the Trustee shall be relieved of any obligation
or duty to such applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any paying agent nor any
Debenture Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of
the holders of Debentures in accordance with the provisions of
subsection (c) of this Section, regardless of the source from which
such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a
request made under said subsection (c).
SECTION 5.03. (a) The Company covenants and agrees to file
with the Trustee, within 30 days after the Company is required to
file the same with the Commission, a copy of the annual reports and
of the information, documents and other reports (or a copy of such
portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act, in respect of a
security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable over-night delivery
service which provides for evidence of receipt, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to subsections
(a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before May 15 in each calendar year in which any of
the Debentures are outstanding, or on or before such other day in
each calendar year as the Company and the Trustee may from time to
time agree upon, a certificate from the principal executive
officer, principal financial officer or principal accounting
officer of the Company as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture.
For purposes of this subsection (d), such compliance shall be
determined without regard to any period of grace or requirement of
notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in which
any of the Debentures are outstanding, the Trustee shall transmit
by mail, first class postage prepaid, to the Debentureholders, as
their names and addresses appear upon the Debenture Register, a
brief report dated as of the preceding May 15, with respect to any
of the following events which may have occurred within the previous
twelve months (but if no such event has occurred within such period
no report need be transmitted):
(1) any change to its eligibility under Section 7.09,
and its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of
Section 310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement
of which it claims or may claim a lien or charge, prior to
that of the Debentures, on any property or funds held or
collected by it as Trustee if such advances so remaining
unpaid aggregate more than 1/2 of 1% of the principal amount
of the Debentures outstanding on the date of such report;
(4) any change to the amount, interest rate, and
maturity date of all other indebtedness owing by the Company,
or by any other obligor on the Debentures, to the Trustee in
its individual capacity, on the date of such report, with a
brief description of any property held as collateral security
therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of
property subject to the lien of this Indenture (and the
consideration thereof, if any) which it has not previously
reported;
(7) any additional issue of Debentures which the Trustee
has not previously reported; and
(8) any action taken by the Trustee in the performance
of its duties under this Indenture which it has not previously
reported and which in its opinion materially affects the
Debentures or the Debentures of any series, except any action
in respect of a default, notice of which has been or is to be
withheld by it in accordance with the provisions of Section
6.07.
(b) The Trustee shall transmit by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, a brief report with respect to
the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made
by the Trustee as such since the date of the last report
transmitted pursuant to the provisions of subsection (a) of this
Section (or if no such report has yet been so transmitted, since
the date of execution of this Indenture), for the reimbursement of
which it claims or may claim a lien or charge prior to that of the
Debentures of any series on property or funds held or collected by
it as Trustee, and which it has not previously reported pursuant to
this subsection if such advances remaining unpaid at any time
aggregate more than 10% of the principal amount of Debentures of
such series outstanding at such time, such report to be transmitted
within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the
Company, with each stock exchange upon which any Debentures are
listed (if so listed) and also with the Commission. The Company
agrees to notify the Trustee when any Debentures become listed on
any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to
Debentures of a particular series, "Event of Default" means any one
or more of the following events which has occurred and is
continuing:
(1) default in the payment of any installment of
interest upon any of the Debentures of that series, as and
when the same shall become due and payable, and continuance of
such default for a period of 10 days; provided, however, that
a valid extension of an interest payment period by the Company
in accordance with the terms of any indenture supplemental
hereto shall not constitute a default in the payment of
interest for this purpose;
(2) default in the payment of the principal of (or
premium, if any, on) any of the Debentures of that series as
and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise, or in
any payment required by any sinking or analogous fund
established with respect to that series;
(3) failure on the part of the Company duly to observe
or perform any other of the covenants or agreements on the
part of the Company with respect to that series contained in
such Debentures or otherwise established with respect to that
series of Debentures pursuant to Section 2.01 hereof or
contained in this Indenture (other than a covenant or
agreement which has been expressly included in this Indenture
solely for the benefit of one or more series of Debentures
other than such series) for a period of 90 days after the date
on which written notice of such failure, requiring the same to
be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by
the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in
principal amount of the Debentures of that series at the time
outstanding;
(4) a decree or order by a court having jurisdiction in
the premises shall have been entered adjudging the Company as
bankrupt or insolvent, or approving as properly filed a
petition seeking liquidation or reorganization of the Company
under the Federal Bankruptcy Code or any other similar
applicable Federal or State law, and such decree or order
shall have continued unvacated and unstayed for a period of 90
consecutive days; or an involuntary case shall be commenced
under such Code in respect of the Company and shall continue
undismissed for a period of 90 consecutive days or an order
for relief in such case shall have been entered; or a decree
or order of a court having jurisdiction in the premises shall
have been entered for the appointment on the ground of
insolvency or bankruptcy of a receiver or custodian or
liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or of its property, or for the winding up or
liquidation of its affairs, and such decree or order shall
have remained in force unvacated and unstayed for a period of
90 consecutive days; or
(5) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file a
petition or answer or consent seeking liquidation or
reorganization under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to
the filing of any such petition, or shall consent to the
appointment on the ground of insolvency or bankruptcy of a
receiver or custodian or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of creditors.
(b) In each and every such case, unless the principal of all
the Debentures of that series shall have already become due and
payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Debentures of that series then
outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Debentureholders), may declare the
principal of all the Debentures of that series to be due and
payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything contained
in this Indenture or in the Debentures of that series or
established with respect to that series pursuant to Section 2.01
hereof to the contrary notwithstanding.
(c) Section 6.01(b), however, is subject to the condition
that if, at any time after the principal of the Debentures of that
series shall have been so declared due and payable, and before any
judgment or decree for the payment of the monies due shall have
been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debentures of that
series and the principal of (and premium, if any, on) any and all
Debentures of that series which shall have become due otherwise
than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of
interest, at the rate per annum expressed in the Debentures of that
series to the date of such payment or deposit) and the amount
payable to the Trustee under Section 7.06, and any and all defaults
under the Indenture, other than the nonpayment of principal on
Debentures of that series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section
6.06, then and in every such case the holders of a majority in
aggregate principal amount of the Debentures of that series then
outstanding, by written notice to the Company and to the Trustee,
may rescind and annul such declaration and its consequences with
respect to that series of Debentures; but no such rescission and
annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures of that series under this
Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other
reason or shall have been determined adversely to the Trustee, then
and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and
the Trustee shall continue as though no such proceedings had been
taken.
SECTION 6.02. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of interest
on any of the Debentures of a series, or any payment required by
any sinking or analogous fund established with respect to that
series as and when the same shall have become due and payable, and
such default shall have continued for a period of 10 business days,
or (2) in case default shall be made in the payment of the
principal of (or premium, if any, on) any of the Debentures of a
series when the same shall have become due and payable, whether
upon maturity of the Debentures of a series or upon redemption or
upon declaration or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders
of the Debentures of that series, the whole amount that then shall
have become due and payable on all such Debentures for principal
(and premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any) and
(to the extent that payment of such interest is enforceable under
applicable law and without duplication of any other amounts paid by
the Company in respect thereof) upon overdue installments of
interest at the rate per annum expressed in the Debentures of that
series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
other obligor upon the Debentures of that series and collect in the
manner provided by law out of the property of the Company or other
obligor upon the Debentures of that series wherever situated the
monies adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition
or other judicial proceedings affecting the Company, any other
obligor on such Debentures, or the creditors or property of either,
the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and
shall (except as may be otherwise provided by law) be entitled to
file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee
and of the holders of Debentures of such series allowed for the
entire amount due and payable by the Company or such other obligor
under the Indenture at the date of institution of such proceedings
and for any additional amount which may become due and payable by
the Company or such other obligor after such date, and to collect
and receive any monies or other property payable or deliverable on
any such claim, and to distribute the same after the deduction of
the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the holders of Debentures of such
series to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments directly
to such Debentureholders, to pay to the Trustee any amount due it
under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to
Debentures of that series, may be enforced by the Trustee without
the possession of any of such Debentures, or the production thereof
at any trial or other proceeding relative thereto, and any such
suit or proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the
holders of the Debentures of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in
it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of
such rights, either at law or in equity or in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or
agreement contained in the Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by
law.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Debentureholder any plan of reorganization, arrangement,
adjustment or composition affecting the Debentures of that series
or the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Debentureholder in any such
proceeding.
SECTION 6.03. Any monies collected by the Trustee pursuant to
Section 6.02 with respect to a particular series of Debentures
shall be applied in the order following, at the date or dates fixed
by the Trustee and, in case of the distribution of such monies on
account of principal (or premium, if any) or interest, upon
presentation of the several Debentures of that series, and stamping
thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee under
Section 7.06;
SECOND: To the payment of the amounts then due and
unpaid upon Debentures of such series for principal (and
premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Debentures for principal (and
premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Debenture of any series shall
have any right by virtue or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or
at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the
continuance thereof with respect to Debentures of such series
specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate principal
amount of the Debentures of such series then outstanding shall have
made written request upon the Trustee to institute such action,
suit or proceeding in its own name as trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity, shall have failed
to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by the
taker and holder of every Debenture of such series with every other
such taker and holder and the Trustee, that no one or more holders
of Debentures of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders
of any other of such Debentures, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all
holders of Debentures of such series. For the protection and
enforcement of the provisions of this Section, each and every
Debentureholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Debenture to receive
payment of the principal of (and premium, if any) and interest on
such Debenture, as therein provided, on or after the respective due
dates expressed in such Debenture (or in the case of redemption, on
the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such
holder.
SECTION 6.05. (a) All powers and remedies given by this
Article to the Trustee or to the Debentureholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of
any others thereof or of any other powers and remedies available to
the Trustee or the holders of the Debentures, by judicial
proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of
any of the Debentures to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject
to the provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or to the Debentureholders
may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Debentures of any series at the time
outstanding, determined in accordance with Section 8.04, shall have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture or unduly
prejudicial to the rights of holders of Debentures of any other
series at the time outstanding determined in accordance with
Section 8.04 not parties thereto. Subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow
any such direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal
liability. The holders of a majority in aggregate principal amount
of the Debentures of any series at the time outstanding affected
thereby, determined in accordance with Section 8.04, may on behalf
of the holders of all of the Debentures of such series waive any
past default in the performance of any of the covenants contained
herein or established pursuant to Section 2.01 with respect to such
series and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest on, any of the
Debentures of that series as and when the same shall become due by
the terms of such Debentures otherwise than by acceleration (unless
such default has been cured and a sum sufficient to pay all matured
installments of interest and principal otherwise than by
acceleration and any premium has been deposited with the Trustee
(in accordance with Section 6.01(c))) or a call for redemption of
Debentures of that series. Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the
Debentures of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series,
transmit by mail, first class postage prepaid, to the holders of
Debentures of that series, as their names and addresses appear upon
the Debenture Register, notice of all defaults with respect to that
series known to the Trustee, unless such defaults shall have been
cured or waived before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined to
be the events specified in subsections (1), (2), (3), (4) and (5)
of Section 6.01(a), not including any periods of grace provided for
therein and irrespective of the giving of notice provided for by
subsection (3) of Section 6.01(a)); provided, that, except in the
case of default in the payment of the principal of (or premium, if
any) or interest on any of the Debentures of that series or in the
payment of any sinking or analogous fund installment established
with respect to that series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Trustee in good faith determine that
the withholding of such notice is in the interests of the holders
of Debentures of that series; provided further, that in the case of
any default of the character specified in Section 6.01(a)(3) with
respect to Debentures of such series no such notice to the holders
of the Debentures of that series shall be given until at least 30
days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under subsection (a)(1) or (a)(2) of
Section 6.01 as long as the Trustee is acting as paying agent for
such series of Debentures or (ii) any default as to which the
Trustee shall have received written notice or a Responsible Officer
charged with the administration of this Indenture shall have
obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each
holder of any Debentures by his or her acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders, holding more than
10% in aggregate principal amount of the outstanding Debentures of
any series, or to any suit instituted by any Debentureholder for
the enforcement of the payment of the principal of (or premium, if
any) or interest on any Debenture of such series, on or after the
respective due dates expressed in such Debenture or established
pursuant to this Indenture.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the occurrence of an
Event of Default with respect to Debentures of a series and after
the curing of all Events of Default with respect to Debentures of
that series which may have occurred, shall undertake to perform
with respect to Debentures of such series such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the
Trustee. In case an Event of Default with respect to Debentures of
a series has occurred (which has not been cured or waived), the
Trustee shall exercise with respect to Debentures of that series
such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that:
(1) prior to the occurrence of an Event of Default with
respect to Debentures of a series and after the curing or
waiving of all such Events of Default with respect to that
series which may have occurred:
(i) the duties and obligations of the Trustee shall
with respect to Debentures of such series be determined
solely by the express provisions of this Indenture, and
the Trustee shall not be liable with respect to
Debentures of such series except for the performance of
such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to Debentures of
such series conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than
a majority in principal amount of the Debentures of any series
at the time outstanding relating to the time, method and place
of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture with respect to the Debentures of
that series; and
(4) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if the Trustee reasonably believes that
the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it
(i) to be genuine and (ii) to have been signed or presented by the
proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company by
the Chairman of the Board, the President or any Vice President and
by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer (unless other evidence in respect thereof is
specifically prescribed herein);
(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered or omitted hereunder in good faith and in
reliance thereon;
(d) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such
Debentureholders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
herein contained shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with respect
to a series of the Debentures (which has not been cured or waived)
to exercise with respect to Debentures of that series such of the
rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his
own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security, or other papers or documents,
unless requested in writing so to do by the holders of not less
than a majority in principal amount of the outstanding Debentures
of the particular series affected thereby (determined as provided
in Section 8.04); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid
by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys 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.
SECTION 7.03. (a) The recitals contained herein and in the
Debentures (other than the Certificate of Authentication on the
Debentures) shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for the correctness of the
same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the
proceeds of such Debentures, or for the use or application of any
monies paid over by the Trustee in accordance with any provision of
this Indenture or established pursuant to Section 2.01, or for the
use or application of any monies received by any paying agent other
than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture
Registrar, in its individual or any other capacity, may become the
owner or pledgee of Debentures with the same rights it would have
if it were not Trustee, paying agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.04, all
monies received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no
liability for interest on any monies received by it hereunder
except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled
to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of
any of the powers and duties hereunder of the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company
also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, willful
misconduct or bad faith on the part of the Trustee and arising out
of or in connection with the acceptance or administration of this
trust, including the reasonable costs and expenses of defending
itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debentures upon all
property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular
Debentures.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to
take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee,
shall be full warrant to the Trustee for any action taken, suffered
or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
SECTION 7.08. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions
of, the Trust Indenture Act and this Indenture.
SECTION 7.09. There shall at all times be a Trustee with
respect to the Debentures issued hereunder which shall at all times
be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or other person
permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million dollars, and subject to
supervision or examination by Federal, State, Territorial, or
District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any person
directly or indirectly controlling, controlled by, or under common
control with the Company, serve as Trustee. In case at any time
the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Debentures of
one or more series by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class
postage prepaid, to the Debentureholders of such series, as their
names and addresses appear upon the Debenture Register. Upon
receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Debentures of such
series by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such
notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor
trustee with respect to Debentures of such series, or any
Debentureholder of that series who has been a bona fide holder of
a Debenture or Debentures for at least six months may, subject to
the provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment of
a successor trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of Section 7.08 after written request therefor by the Company
or by any Debentureholder who has been a bona fide holder of
a Debenture or Debentures for at least six months; or
(2) The Trustee shall cease to be eligible in accordance
with the provisions of Section 7.09 and shall fail to resign
after written request therefor by the Company or by any such
Debentureholder; or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Company may remove the Trustee with
respect to all Debentures and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.08, unless the Trustee's
duty to resign is stayed as provided herein, any Debentureholder
who has been a bona fide holder of a Debenture or Debentures for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount
of the Debentures of any series at the time outstanding may at any
time remove the Trustee with respect to such series and appoint a
successor trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee with respect to the Debentures of a series
pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section
may be appointed with respect to the Debentures of one or more
series or all of such series, and at any time there shall be only
one Trustee with respect to the Debentures of any particular
series.
SECTION 7.11. (a) In case of the appointment hereunder of a
successor trustee with respect to all Debentures, every such
successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor
trustee with respect to the Debentures of one or more (but not all)
series, the Company, the retiring Trustee and each successor
trustee with respect to the Debentures of one or more series shall
execute and deliver an indenture supplemental hereto wherein each
successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Debentures of that or those series to which the
appointment of such successor trustee relates, (2) shall contain
such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debentures of that or those
series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to
or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon
the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee
shall with respect to the Debentures of that or those series to
which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture, and each such successor trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Debentures of that or those series to which the
appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee, to the
extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to
the Debentures of that or those series to which the appointment of
such successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless
at the time of such acceptance such successor trustee shall be
qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses
appear upon the Debenture Register. If the Company fails to
transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation
shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debentures 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 Debentures so authenticated with the same effect as if such
successor Trustee had itself authenticated such Debentures.
SECTION 7.13. If and when the Trustee shall become a creditor
of the Company (or any other obligor upon the Debentures), the
Trustee shall be subject to the provisions of the Trust Indenture
Act regarding collection of claims against the Company (or any
obligor upon the Debentures).
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate
principal amount of the Debentures of a particular series may take
any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the
holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any
number of instruments of similar tenor executed by such holders of
Debentures of that series in person or by agent or proxy appointed
in writing.
If the Company shall solicit from the Debentureholders of any
series any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record date
for such series for the determination of Debentureholders entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the
Debentureholders of record at the close of business on the record
date shall be deemed to be Debentureholders for the purposes of
determining whether Debentureholders of the requisite proportion of
outstanding Debentures of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
outstanding Debentures of that series shall be computed as of the
record date; provided that no such authorization, agreement or
consent by such Debentureholders on the record date shall be deemed
effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the
record date.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Debentureholder (such
proof will not require notarization) or his agent or proxy and
proof of the holding by any person of any of the Debentures shall
be sufficient if made in the following manner:
(a) The fact and date of the execution by any such person of
any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b) The ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration
of transfer of any Debenture, the Company, the Trustee, any paying
agent and any Debenture Registrar may deem and treat the person in
whose name such Debenture shall be registered upon the books of the
Company as the absolute owner of such Debenture (whether or not
such Debenture shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or on
account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Debenture and for all other
purposes; and neither the Company nor the Trustee nor any paying
agent nor any Debenture Registrar shall be affected by any notice
to the contrary.
SECTION 8.04. In determining whether the holders of the
requisite aggregate principal amount of Debentures of a particular
series have concurred in any direction, consent or waiver under
this Indenture, Debentures of that series which are owned by the
Company or any other obligor on the Debentures of that series or by
any person directly or indirectly controlling or controlled by or
under common control with the Company or any other obligor on the
Debentures of that series shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, except that
for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only
Debentures of such series which the Trustee actually knows are so
owned shall be so disregarded. Debentures so owned which have been
pledged in good faith may be regarded as outstanding for the
purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Debentures and that the pledgee is not a person
directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Debentures of a particular
series specified in this Indenture in connection with such action,
any holder of a Debenture of that series which is shown by the
evidence to be included in the Debentures the holders of which have
consented to such action may, by filing written notice with the
Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Debenture. Except as
aforesaid any such action taken by the holder of any Debenture
shall be conclusive and binding upon such holder and upon all
future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or
in place thereof, irrespective of whether or not any notation in
regard thereto is made upon such Debenture. Any action taken by
the holders of the majority or percentage in aggregate principal
amount of the Debentures of a particular series specified in this
Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the holders of all the
Debentures of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, when
authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect), without the consent of the
Debentureholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants
of the Company contained herein or otherwise established with
respect to the Debentures; or
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the
protection of the holders of the Debentures of all or any series as
the Board of Directors shall consider to be for the protection of
the holders of Debentures of all or any series, and to make the
occurrence, or the occurrence and continuance, of a default in any
of such additional covenants, restrictions, conditions or
provisions a default or an Event of Default with respect to such
series permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee
upon such default or may limit the right of the holders of a
majority in aggregate principal amount of the Debentures of such
series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under this
Indenture as shall not be inconsistent with the provisions of this
Indenture and shall not adversely affect the interests of the
holders of the Debentures of any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Debenture outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter
into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee without
the consent of the holders of any of the Debentures at the time
outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series
affected by such supplemental indenture or indentures at the time
outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of
the holders of the Debentures of such series under this Indenture;
provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Debentures of any series, or
reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the
holder of each Debenture so affected or (ii) reduce the aforesaid
percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent of
the holders of each Debenture then outstanding and affected
thereby.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the
consent of Debentureholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Debentureholders of any series affected thereby under this Section
to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance of
such supplemental indenture, to the Debentureholders of all series
affected thereby as their names and addresses appear upon the
Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of Section
10.01, this Indenture shall, with respect to such series, be and be
deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the
holders of Debentures of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be
and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 9.04. Debentures of any series, affected by a
supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form
approved by the Company, provided such form meets the requirements
of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company
shall so determine, new Debentures of that series so modified as to
conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Debentures of that series
then outstanding.
SECTION 9.05. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this
Article is authorized or permitted by, and conforms to, the terms
of this Article and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof.
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01. Nothing contained in this Indenture or in any
of the Debentures shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations (whether
or not affiliated with the Company), or successive consolidations
or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance,
transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not affiliated with
the Company or its successor or successors) authorized to acquire
and operate the same; provided, however, the Company hereby
covenants and agrees that, upon any such consolidation, merger,
sale, conveyance, transfer or other disposition, the due and
punctual payment of the principal of (premium, if any) and interest
on all of the Debentures of all series in accordance with the terms
of each series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or
performed by the Company, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act as then in effect) satisfactory in form to
the Trustee executed and delivered to the Trustee by the entity
formed by such consolidation, or into which the Company shall have
been merged, or by the entity which shall have acquired such
property.
SECTION 10.02. (a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the
assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the due and punctual payment of the principal of,
premium, if any, and interest on all of the Debentures of all
series outstanding and the due and punctual performance of all of
the covenants and conditions of this Indenture or established with
respect to each series of the Debentures pursuant to Section 2.01
to be performed by the Company with respect to each series, such
successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the
party of the first part, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this
Indenture and the Debentures. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in
the name of the Company or any other predecessor obligor on the
Debentures, any or all of the Debentures issuable hereunder which
theretofore shall not have been signed by the Company and delivered
to the Trustee; and, upon the order of such successor company,
instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Debentures which previously
shall have been signed and delivered by the officers of the
predecessor Company to the Trustee for authentication, and any
Debentures which such successor corporation thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All
the Debentures so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Debentures theretofore
or thereafter issued in accordance with the terms of this Indenture
as though all of such Debentures had been issued at the date of the
execution hereof.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the property
of any other corporation (whether or not affiliated with the
Company).
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with
the provisions of this Article.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 11.01. If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Debentures of a
series theretofore authenticated (other than any Debentures which
shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.07 and Debentures for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereupon repaid to
the Company or discharged from such trust, as provided in Section
11.04); or (b) the Company shall deposit or cause to be deposited
with the Trustee as trust funds (i) the entire amount in monies or
Governmental Obligations or (ii) a combination of monies and
Governmental Obligations, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay at
maturity or upon redemption under arrangements satisfactory to the
Trustee for the giving of notice of redemption, all Debentures of
a particular series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
interest due or to become due to their date of maturity or date
fixed for redemption, as the case may be, and if such deposit shall
be made prior to the stated maturity date of the Debentures of that
series, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the holders of such Debentures will
not recognize gain, loss or income for federal income tax purposes
as a result of the satisfaction and discharge of this Indenture
with respect to such series and such holders will be subject to
federal income taxation on the same amounts and in the same manner
and at the same times as if such satisfaction and discharge had not
occurred, and if the Company shall also pay or cause to be paid all
other sums payable hereunder with respect to such series by the
Company, then this Indenture shall thereupon cease to be of further
effect with respect to such series except for the provisions of
Sections 2.05, 2.07, 4.02 and 7.10, which shall survive until the
date of maturity or redemption date, as the case may be, and
Sections 7.06 and 11.04 which shall survive to such date and
thereafter, and the Trustee, on demand of the Company and at the
cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with
respect to such series.
SECTION 11.02. All monies or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02
shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the particular
series of Debentures for the payment or redemption of which such
monies or Governmental Obligations have been deposited with the
Trustee.
SECTION 11.03. In connection with the satisfaction and
discharge of this Indenture all monies or Governmental Obligations
then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee
and thereupon such paying agent shall be released from all further
liability with respect to such monies or Governmental Obligations.
SECTION 11.04. Any monies or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by the
Company, in trust for payment of principal of or premium or
interest on the Debentures of a particular series that are not
applied but remain unclaimed by the holders of such Debentures for
at least two years after the date upon which the principal of (and
premium, if any) or interest on such Debentures shall have
respectively become due and payable, upon the written request of
the Company and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, shall
be repaid to the Company on May 31 of each year or (if then held by
the Company) shall be discharged from such trust; and thereupon the
paying agent and the Trustee shall be released from all further
liability with respect to such monies or Governmental Obligations,
and the holder of any of the Debentures entitled to receive such
payment shall thereafter, as an unsecured general creditor, look
only to the Company for the payment thereof.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Debenture, or
for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director,
past, present or future as such, of the Company or of any
predecessor or successor corporation, either directly or through
the Company or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors
as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or
in any of the Debentures or implied therefrom; and that any and all
such personal liability of every name and nature, either at common
law or in equity or by constitution or statute, of, and any and all
such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or
in any of the Debentures or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issuance of such
Debentures.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so expressed
or not.
SECTION 13.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done
and performed with like force and effect by the corresponding
board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
SECTION 13.03. The Company by instrument in writing executed
by authority of two-thirds of its Board of Directors and delivered
to the Trustee may surrender any of the powers reserved to the
Company and thereupon such power so surrendered shall terminate
both as to the Company and as to any successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein
any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by
the holders of Debentures to or on the Company may be given or
served by being deposited first class postage prepaid in a post
office letter box addressed (until another address is filed in
writing by the Company with the Trustee), as follows: Ohio Power
Company, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxx, Xxxx 00000, Attention:
President; with a copy to American Electric Power Service
Corporation, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention:
Vice President-Finance. Any notice, election, request or demand by
the Company or any Debentureholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.05. This Indenture and each Debenture shall be
deemed to be a contract made under the laws of the State of New
York, and for all purposes shall be construed in accordance with
the laws of said State.
SECTION 13.06. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture (other than the
certificate provided pursuant to Section 5.03(d) of this Indenture)
shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been
complied with.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an Officers'
Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date of maturity of
interest or principal of any Debenture or the date of redemption of
any Debenture shall not be a business day then payment of interest
or principal (and premium, if any) may be made on the next
succeeding business day with the same force and effect as if made
on the nominal date of maturity or redemption, and no interest
shall accrue for the period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by
the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Debentures of any series
shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Indenture or of such Debentures, but this Indenture and such
Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.11. The Company will have the right at all times to
assign any of its rights or obligations under the Indenture to a
direct or indirect wholly owned Subsidiary of the Company; provided
that, in the event of any such assignment, the Company will remain
liable for all such obligations. Subject to the foregoing, this
Indenture is binding upon and inures to the benefit of the parties
thereto and their respective successors and assigns. This Indenture
may not otherwise be assigned by the parties thereto.
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01. The Company covenants and agrees, and each
holder of Debentures issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Debentures shall be issued
subject to the provisions of this Article Fourteen; and each holder
of a Debenture, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest
on all Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and subject in right
of payment to the prior payment in full of all Senior Indebtedness,
whether outstanding at the date of this Indenture or thereafter
incurred.
No provision of this Article Fourteen shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 14.02. In the event and during the continuation of any
default in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness continuing beyond the period
of grace, if any, specified in the instrument evidencing such
Senior Indebtedness, unless and until such default shall have been
cured or waived or shall have ceased to exist, or in the event that
the maturity of any Senior Indebtedness has been accelerated
because of a default, then, in either case, no payment shall be
made by the Company with respect to the principal (including
redemption and sinking fund payments) of, or premium, if any, or
interest on the Debentures.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any holder when such payment is
prohibited by the preceding paragraph of this Section 14.02, such
payment shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Senior Indebtedness or
their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests
may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a
trustee) notify the Trustee within 90 days of such payment of the
amounts then due and owing on the Senior Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to
the holders of Senior Indebtedness.
SECTION 14.03. Upon any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or
to become due upon all Senior Indebtedness shall first be paid in
full, or payment thereof provided for in money in accordance with
its terms, before any payment is made on account of the principal
(and premium, if any) or interest on the Debentures; and upon any
such dissolution or winding-up or liquidation or reorganization any
payment by the Company, or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the holders of the Debentures or the Trustee would be
entitled, except for the provisions of this Article Fourteen, shall
by paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or
distribution, or by the holders of the Debentures or by the Trustee
under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay all Senior Indebtedness
in full, in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the
holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee or the holders of the
Debentures before all Senior Indebtedness is paid in full, or
provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of
Senior Indebtedness or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to which
any instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by
the Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Indebtedness.
For purposes of this Article Fourteen, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
Fourteen with respect to the Debentures to the payment of all
Senior Indebtedness which may at the time be outstanding; provided
that (i) the Senior Indebtedness is assumed by the new corporation,
if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of the Senior Indebtedness are not,
without the consent of such holders, altered by such reorganization
or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation
or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in
Article Ten hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section
14.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Ten hereof. Nothing in Section 14.02
or in this Section 14.03 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.06.
SECTION 14.04. Subject to the payment in full of all Senior
Indebtedness, the rights of the holders of the Debentures shall be
subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities
of the Company applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debentures
shall be paid in full; and, for the purposes of such subrogation,
no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the
holders of the Debentures or the Trustee would be entitled except
for the provisions of this Article Fourteen, and no payment over
pursuant to the provisions of this Article Fourteen, to or for the
benefit of the holders of Senior Indebtedness by holders of the
Debentures or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the
holders of the Debentures, be deemed to be a payment by the Company
to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article Fourteen are and are intended solely
for the purposes of defining the relative rights of the holders of
the Debentures, on the one hand, and the holders of the Senior
Indebtedness on the other hand.
Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in the Debentures is intended to or shall impair,
as between the Company, its creditors other than the holders of
Senior Indebtedness, and the holders of the Debentures, the
obligation of the Company, which is absolute and unconditional, to
pay to the holders of the Debentures the principal of (and premium,
if any) and interest on the Debentures as and when the same shall
become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of
the Debentures and creditors of the Company other than the holders
of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the holder of any Debenture from exercising
all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this
Article Fourteen of the holders of Senior Indebtedness in respect
of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 7.01, and the holders of the Debentures,
shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the holders of the
Debentures, for the purposes of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article Fourteen.
SECTION 14.05. Each holder of a Debenture by his acceptance
thereof authorizes and directs the Trustee in his behalf to take
such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fourteen and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. The Company shall give prompt written notice to
a Responsible Officer of the Trustee of any fact known to the
Company which would prohibit the making of any payment of monies to
or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article Fourteen.
Notwithstanding the provisions of this Article Fourteen or any
other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts which would prohibit
the making of any payment of monies to or by the Trustee in respect
of the Debentures pursuant to the provisions of this Article
Fourteen, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof at the Corporate Trust
Office of the Trustee from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the
provisions of Section 7.01, shall be entitled in all respects to
assume that no such facts exist; provided that if the Trustee shall
not have received the notice provided for in this Section 14.06 at
least two business days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if
any) or interest on any Debenture), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected by
any notice to the contrary which may be received by it within two
business days prior to such date.
The Trustee, subject to the provisions of Section 7.01, shall
be entitled to rely on the delivery to it of a written notice by a
person representing himself to be a holder of Senior Indebtedness
(or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a
trustee on behalf of any such holder or holders. In the event that
the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Fourteen, the Trustee may request such
person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such
person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to
the rights of such person under this Article Fourteen, and if such
evidence is not furnished the Trustee may defer any payment to such
person pending judicial determination as to the right of such
person to receive such payment.
SECTION 14.07. The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Fourteen in
respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing
in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article Fourteen, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into
this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and, subject to the provisions of Section 7.01, the
Trustee shall not be liable to any holder of Senior Indebtedness if
it shall pay over or deliver to holders of Debentures, the Company
or any other person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Fourteen
or otherwise.
SECTION 14.08. No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee
or the holders of the Debentures, without incurring responsibility
to the holders of the Debentures and without impairing or releasing
the subordination provided in this Article or the obligations
hereunder of the holders of the Debentures to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or
supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any person liable in
any manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company
and any other person.
The First National Bank of Chicago, as Trustee, hereby accepts
the trusts in this Indenture declared and provided, upon the terms
and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
OHIO POWER COMPANY
By_/s/ G. P. Maloney_____
Vice President
Attest:
By_/s/ Xxxx X. Xx Xxxxxxx, Xx.
Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_/s/ R. D. Manella______
Vice President
Attest:
By_/s/ Xxxxx X. Pacella__
Trust Officer
State of Ohio }
County of Franklin, } ss:
On this 12th day of October, 1995, personally appeared before
me, a Notary Public within and for said County in the State
aforesaid, X. X. Xxxxxxx and Xxxx X. Xx Xxxxxxx, Xx., to me known
and known to me to be respectively a Vice President and Secretary
of OHIO POWER COMPANY, one of the corporations named in and which
executed the foregoing instrument, who severally acknowledged that
they did sign and seal said instrument as such Vice President and
Secretary for and on behalf of said corporation and that the same
is their free act and deed as such Vice President and Secretary,
respectively, and the free and corporate act and deed of said
corporation.
In Witness Whereof, I have hereunto set my hand and notarial
seal this 12th day of October, 1995.
[Notarial Seal]
_/s/ Xxxx X. Soltesz______
Xxxx X. Xxxxxxx
Notary Public, State of Ohio
My Commission Expires 7-12-99
State of Illinois }
County of Xxxx } ss:
Be it remembered, that on this 17th day of October, 1995,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, THE FIRST NATIONAL BANK OF
CHICAGO, one of the corporations named in and which executed the
foregoing instrument, by X. X. Xxxxxxx one of its Vice Presidents,
and by Xxxxx X. Xxxxxxx, one of its Trust Officers, to me known and
known by me to be such Vice President and Trust Officer,
respectively, who severally duly acknowledged the signing and
sealing of the foregoing instrument to be their free act and
voluntary deed, and the free act and voluntary deed of each of them
as such Vice President and Trust Officer, respectively, and the
free act and voluntary deed of said corporation, for the uses and
purposes therein expressed and mentioned.
In Witness Whereof, I have hereunto set my hand and notarial
seal this 17th day of October, 1995.
[Notarial Seal]
_/s/ Xxxxxx Helmer_____________
Notary Public, State of Illinois
My Commission Expires: 1-14-99
