Exhibit 4 (a)
CONSTELLATION ENERGY CORPORATION
AND
THE BANK OF NEW YORK
Trustee
__________
INDENTURE
Dated as of April 4, 1997
__________
TABLE OF CONTENTS *
Page
PARTIES .............................................. 1
RECITALS .............................................. 1
Purpose of Indenture ................................. 1
Compliance with Legal Requirements ................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions ............................. 2
Board of Directors ...................... 2
Board Resolution ....................... 2
Business Day ............................ 2
Corporation ............................. 3
Depositary .............................. 3
Discounted Security ..................... 3
Event of Default ........................ 3
Federal Bankruptcy Code ................. 3
Indenture ............................... 3
Officers' Certificate ................... 3
Opinion of Counsel ...................... 4
Outstanding ............................. 4
Principal Office of the Trustee ......... 5
Prospectus Supplement ................... 5
Responsible Officer ..................... 5
Security or Securities .................. 5
Securityholder........................... 5
Series .................................. 5
Trustee ................................. 5
Trust Indenture Act of 1939 ............. 6
Yield to Maturity ....................... 6
_______
* This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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ARTICLE TWO
THE SECURITIES
Page
SECTION 2.01. Forms of Securities ..................... 6
SECTION 2.02. Authentication Agent and Form of
Certificate of Authentication ......... 7
SECTION 2.03. Global Securities ....................... 8
ARTICLE THREE
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
SECTION 3.01. Title, Amount and Terms of Securities .... 8
SECTION 3.02. Denominations, Dates, Interest Payment and
Record Dates, and Place of Payment ..... 10
SECTION 3.03. Execution of Securities .................. 11
SECTION 3.04. Exchange and Registration of Transfer of
Securities ............................. 11
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen
Securities ............................. 14
SECTION 3.06. Temporary Securities ..................... 15
SECTION 3.07. Cancellation of Securities Paid, etc. .... 16
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of This Article ............ 16
SECTION 4.02. Election to Redeem; Notice to Trustee .... 17
SECTION 4.03. Selection of Securities to be Redeemed ... 17
SECTION 4.04. Notice of Redemption ..................... 17
SECTION 4.05. Deposit of Redemption Price .............. 18
SECTION 4.06. Payment of Securities Called for Redemp-
tion .................................. 18
SECTION 4.07 Delegation of Duties by Trustee .......... 19
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ARTICLE FIVE
PARTICULAR COVENANTS OF THE CORPORATION
Page
SECTION 5.01. To Pay Principal (and Premium, if any) and
Interest ............................... 19
SECTION 5.02. To Maintain Office or Agency ............. 20
SECTION 5.03. To Fill a Vacancy in the Office of Trustee 20
SECTION 5.04. Appointment of Paying Agents; Money for
Security Payments to be Set Aside in
Trust; Transfer of Moneys Held by Paying
Agents ................................. 20
SECTION 5.05. Maintenance of Corporate Existence, Rights
and Franchises ......................... 22
SECTION 5.06. Certificate as to No Default ............. 22
ARTICLE SIX
SECURITYHOLDERS LISTS AND REPORTS BY THE CORPORATION
AND THE TRUSTEE
SECTION 6.01. Securityholders Lists ..................... 22
SECTION 6.02. Preservation and Disclosure of Lists ...... 23
SECTION 6.03. Reports by the Corporation ................ 24
SECTION 6.04. Reports by the Trustee .................... 25
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS
SECTION 7.01. Events of Default; Remedies .............. 27
SECTION 7.02. Payment of Securities on Default; Suit
Therefor ............................... 30
SECTION 7.03. Application of Moneys Collected by Trustee 32
SECTION 7.04. Proceedings by Securityholders ........... 33
SECTION 7.05. Proceedings by Trustee ................... 34
SECTION 7.06. Remedies Cumulative and Continuing ....... 34
SECTION 7.07. Direction of Proceedings and Waiver
Defaults by Majority of Securityholders 34
SECTION 7.08. Notice of Defaults ....................... 35
SECTION 7.09. Undertaking to Pay Costs ................. 35
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
Page
SECTION 8.01. Duties and Responsibilities of Trustee .. 36
SECTION 8.02. Reliance on Documents, Opinions, etc. ... 37
SECTION 8.03. No Responsibility for Recitals, etc. .... 39
SECTION 8.04. Trustee, Paying Agent or Registrar May
Own Securities ........................ 39
SECTION 8.05. Moneys to Be Held in Trust .............. 39
SECTION 8.06. Compensation and Expenses of Trustee .... 40
SECTION 8.07. Officers' Certificate as Evidence ....... 40
SECTION 8.08. Conflicting Interest of Trustee ......... 41
SECTION 8.09. Eligibility of Trustee .................. 47
SECTION 8.10. Resignation or Removal of Trustee ....... 48
SECTION 8.11. Acceptance by Successor Trustee ......... 49
SECTION 8.12. Succession by Merger, etc. .............. 51
SECTION 8.13. Limitation on Rights of Trustee as a
Creditor .............................. 52
ARTICLE NINE
CONCERNING THE SECURITYHOLDERS
SECTION 9.01. Action by Securityholders ............... 57
SECTION 9.02. Proof of Execution by Securityholders ... 57
SECTION 9.03. Who Are Deemed Absolute Owners .......... 57
SECTION 9.04. Corporation-Owned Securities Disregarded 58
SECTION 9.05. Revocation of Consents; Future Holders
Bound ................................. 59
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ARTICLE TEN
SECURITYHOLDERS' MEETINGS
Page
SECTION 10.01. Purpose of Meetings ...................... 59
SECTION 10.02. Call of Meetings by Trustee .............. 60
SECTION 10.03. Call of Meeting by Corporation
Securityholders ......................... 60
SECTION 10.04. Qualifications for Voting ................ 60
SECTION 10.05. Regulations .............................. 61
SECTION 10.06. Voting ................................... 61
SECTION 10.07. Written Consent in Lieu of Meeting ....... 62
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Without Consent
of Securityholders ...................... 62
SECTION 11.02. Supplemental Indentures With Consent
of Securityholders ...................... 64
SECTION 11.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indenture ........ 65
SECTION 11.04. Notation on Securities ................... 65
SECTION 11.05. Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee ....... 66
ARTICLE TWELVE
CONSOLIDATION, MERGER AND SALE
SECTION 12.01. Corporation May Consolidate, etc., on
Certain Terms ........................... 66
SECTION 12.02. Successor Corporation to Be Substituted .. 66
SECTION 12.03. Opinion of Counsel to Be Given Trustee ... 67
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture ................... 68
SECTION 13.02. Deposited Moneys to Be Held in Trust
by Trustee .............................. 68
SECTION 13.03. Paying Agent to Repay Moneys Held ........ 69
SECTION 13.04. Return of Unclaimed Moneys ............... 69
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Page
SECTION 14.01. Indenture and Securities Solely Corporate
Obligations ............................. 69
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.01. General .................................. 70
SECTION 15.02. Satisfaction of Sinking Fund Payments
with Securities ......................... 70
SECTION 15.03. Redemption of Securities for Sinking
Fund .................................... 70
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01. Provisions Binding on Corporation's
Successors .............................. 71
SECTION 16.02. Official Acts by Successor Corporation ... 71
SECTION 16.03. Addresses for Notices, etc. .............. 71
SECTION 16.04. Maryland Contract ........................ 72
SECTION 16.05. Evidence of Compliance with Conditions
Precedent ............................... 72
SECTION 16.06. Legal Holidays ........................... 72
SECTION 16.07. Trust Indenture Act to Control ........... 73
SECTION 16.08. Table of Contents, Headings, etc. ........ 73
SECTION 16.09. Execution in Counterparts ................ 73
TESTIMONIUM ............................................. 73
SIGNATURES ............................................. 73
vi
THIS INDENTURE, dated as of April 4, 1997 between
CONSTELLATION ENERGY CORPORATION, a corporation duly organized
and existing under the laws of the State of Maryland and the
Commonwealth of Virginia (hereinafter sometimes called the
"Corporation"), and THE BANK OF NEW YORK, as Trustee, a
corporation duly organized and existing under the laws of the
State of New York (hereinafter sometimes called the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Corporation
has duly authorized the issue of its unsecured debt securities
from time to time in series (all such series of debt securities
are herein collectively called the "Securities"), unlimited as to
principal amount and, to provide the terms and conditions upon
which the Securities are to be authenticated, issued and
delivered, the Corporation has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all acts and things necessary to constitute these
presents a valid agreement according to its terms have been done
and performed, and the execution and delivery of this Indenture
have in all respects been duly authorized, and the Corporation
proposes to do all acts and things necessary to make the
Securities, when executed by the Corporation and authenticated
and delivered by the Trustee, as in this Indenture provided, and
issued, the valid, binding and legal obligations of the
Corporation;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Securities are, and are to be, authenticated, issued and
delivered, and in consideration of the premises and of the
purchase and acceptance of the Securities by the holders thereof,
the Corporation covenants and agrees with the Trustee for the
equal and proportionate benefit, except as otherwise expressly
provided in this Indenture, of the respective holders from time
to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust
Indenture Act of 1939 or which are by reference therein 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 this Indenture as originally executed.
Board of Directors:
The term "Board of Directors" shall mean the Board of
Directors of the Corporation or any duly authorized committee of
such Board of Directors or any directors or officers of the
Corporation to whom such Board of Directors or such committee
shall have duly delegated its authority to act hereunder.
Board Resolution:
The term "Board Resolution" shall mean a resolution of the
Board of Directors or of any duly authorized committee of the
Board of Directors or the written declaration of any director or
officer of the Corporation to whom the Board of Directors or such
committee shall have duly delegated its authority to act with
respect to the matter covered by such declaration, a copy of
which has been certified by the Secretary or an Assistant
Secretary of the Corporation to have been duly adopted by the
Board of Directors, such committee, or such director or officer,
as the case may be, and to be in full force and effect on the
date of such certification, which certification shall, in the
case of any action taken by any such duly authorized committee,
director or officer, include a copy of the resolution or
resolutions of the Board of Directors, and/or committee thereof,
establishing the authority of the committee, director or officer
with respect to the action taken.
Business Day:
The term "business day" shall mean any day which is not a
Saturday or Sunday or a day on which banking institutions in the
2
City of New York or the State of Maryland are authorized or
required by law or executive order to be closed.
Corporation:
The term "Corporation" shall mean CONSTELLATION ENERGY
CORPORATION, a Maryland and Virginia corporation, and subject to
the provisions of Article Twelve shall include its successors and
assigns.
Depositary
The term "Depositary" shall mean, with respect to the
Securities of any series issuable or issued in global form, the
person designated pursuant to Section 3.01(10) as the Depositary
with respect thereto or any successor appointed pursuant to
Section 3.04 of the Indenture.
Discounted Security:
The term "Discounted Security" shall mean any Security which
provides for an amount (excluding any amounts attributable to
accrued but unpaid interest thereon) less than the principal
amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 7.01.
Event of Default:
The term "Event of Default" shall mean any event specified
in Section 7.O1, continued for the period of time, if any, and
after the giving of the notice, if any, therein designated.
Federal Bankruptcy Code:
The term "Federal Bankruptcy Code" shall mean Title 11 of
the United States Code.
Indenture:
The term "Indenture" shall mean this instrument as
originally executed or, if amended or supplemented, as so amended
or supplemented, and shall include the form of each particular
series of Securities established as provided in Section 2.01.
0fficers' Certificate:
The term "Officers' Certificate", when used with respect to
the Corporation, shall mean a certificate signed by the Chairman
of the Board, Chief Executive Officer, Vice Chairman, President
or a Vice President of the Corporation and the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer of
the Corporation. Each such certificate shall include the
3
statements provided for in Section 16.05 if and to the extent
required by the provisions of such Section.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in
writing signed by legal counsel who may be an employee of the
Corporation or other counsel satisfactory to the Trustee. Each
such opinion shall include the statements provided for in Section
16.05 if and to the extent required by the provisions of such
Section.
Outstanding:
The term "outstanding", when used with reference to
Securities, shall, subject to the provisions of Section 9.04,
mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities or portions thereof, for the payment of
which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Corporation) or shall have been set aside
and segregated in trust by the Corporation (if the
Corporation shall act as its own paying agent); and
(c) Securities in lieu of or in substitution for which
other Securities shall have been authenticated and delivered
pursuant to the terms of Section 3.05, or which shall have
been paid, unless proof satisfactory to the Trustee is
presented that any such Securities are held by any person in
whose hands any of such Securities is a legal, valid and
binding obligation of the Corporation.
In determining whether the holders of the requisite principal
amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder,
the principal amount of a Discounted Security shall be the amount
of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of
the maturity thereof pursuant to Section 7.01.
4
Principal Office of the Trustee:
The term "Principal Office of the Trustee" or any other
similar term shall mean the principal office of the Trustee at
which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of
this Indenture is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Prospectus:
The term "Prospectus" shall mean a prospectus, filed by the
Corporation with the Securities and Exchange Commission pursuant
to Rule 424(b) or (c) promulgated under the Securities Act of
1933, as amended, which sets forth the terms of the Securities
described therein.
Responsible Officer:
The term "Responsible Officer", when used with respect to
the Trustee, shall mean the chairman of the board of directors,
the president, the secretary, and the treasurer, or any other
officer of the Trustee in its corporate trust department.
Security or Securities:
The term "Security" or "Securities" shall mean any debt
security or debt securities, as the case may be, authenticated
and delivered under this Indenture in temporary or permanent form
and global or definitive form.
Securityholder:
The terms "Securityholder" or "holder of Securities" or
other similar terms, shall mean any person in whose name at the
time a particular Security is registered on the books of the
Corporation kept for that purpose in accordance with the terms
hereof.
Series:
The term "series" when used with respect to the Securities
shall mean all Securities described in a Board Resolution as
being part of any particular series.
Trustee:
The term "Trustee" shall mean THE BANK OF NEW YORK until a
successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee"
shall mean or include each Trustee which is then a Trustee
hereunder, and if at any time there is more than one such
5
Trustee, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that
series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939 as it was in force at the date of execution
of this Indenture, except as provided in Section 11.03.
Yield to Maturity:
The term "Yield to Maturity", when used with respect to any
Discounted Security shall mean the yield to maturity, if any, set
forth in the Prospectus relating thereto, which shall be equal to
the yield to maturity, if any, set forth on the face of such
Security.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Forms of Securities. The Securities shall be
in such form or forms as shall be established by or pursuant to a
Board Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto
and may have such letters, numbers or other marks of
identification and such legends or endorsements imprinted thereon
as the officers executing the same may approve (execution thereof
to be conclusive evidence of such approval).
Prior to the delivery of a Security in any such form to the
Trustee for authentication, the Corporation shall deliver to the
Trustee the following:
(1) a written order of the Corporation requesting the
Trustee's authentication and delivery of the securities;
(2) the Board Resolution by or pursuant to which such
form of Security has been approved, and, if a form of
security is to be approved by officer action pursuant to a
Board Resolution, an Officers' Certificate describing the
action taken;
(3) an Officers' Certificate dated the date such
certificate is delivered to the Trustee, stating that all
conditions precedent provided for in this Indenture relating
6
to the authentication and delivery of Securities in such
form have been complied with; and
(4) an Opinion of Counsel stating that Securities in
such form when completed by appropriate insertions and
executed and delivered by the Corporation to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance
with this Indenture within the authorization as to aggregate
principal amount established from time to time by the Board
of Directors, and sold in the manner specified in such
Opinion of Counsel, will be the legal, valid and binding
obligations of the Corporation entitled to the benefits of
this Indenture, subject to applicable bankruptcy,
reorganization, insolvency and other similar laws generally
affecting creditors' rights, to general equitable principles
and to such other qualifications as, such counsel shall
conclude do not materially affect the rights of holders of
such Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or
otherwise in any manner as determined by the officers executing
the same (execution thereof to be conclusive evidence of such
approval).
SECTION 2.02. Authentication Agent and Form of Certificate
of Authentication. The Corporation hereby appoints the Trustee as
an authentication agent for the Securities. The Corporation may
designate one or more additional authentication agent(s) for all
of the Securities or for one or more series of the Securities;
provided that the Trustee must consent in writing to such
designation.
The following shall be the form of Certificate of
Authentication provided by the Trustee or any authentication
agent.
This is one of the Securities of the series designated
herein issued under the Indenture described herein.
[NAME OF TRUSTEE OR AUTHENTICATION AGENT]
By _________________________
Authorized Signator
Dated:__________
7
Section 2.03. Global Securities. If the Corporation shall
establish pursuant to Section 3.01(10) that the Securities of
all or part of a series are to be issued in whole or in part in
the form of a global Security, such global Security shall be
registered in the name of the Depositary for such global Security
or the nominee of such Depositary and shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's
instructions.
ARTICLE THREE
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
SECTION 3.01. Title, Amount and Terms of Securities. The
aggregate principal amount of Securities which may be
authenticated and delivered and Outstanding under this Indenture
is not limited. The Securities may be issued in an aggregate
principal amount up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board
Resolution.
The Securities may be issued in one or more series, the
terms of each of which shall be determined in or pursuant to a
Board Resolution. With respect to each series of Securities, the
following terms shall be specified in the Board Resolution
relating thereto, or in an Officers' Certificate detailing any
actions taken pursuant to the Board Resolutions relating thereto:
(1) the title of the Securities of that series (which
shall distinguish the Securities of that series from
Securities of all other series);
(2) any limit upon the aggregate principal amount of
the Securities of that series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
that series pursuant to Section 3.04, 3.05, 3.06, 4.06 or
11.04);
(3) the date or rates on which the principal of the
Securities of that series is payable;
8
(4) the rate or rates, or the method to be used in
establishing the rate or rates, at which the Securities of
that series shall bear interest (if any), the date or dates
from which such interest shall accrue, the interest payment
dates on which such interest shall be payable, the record
date for the interest payable on any interest payment date
and any other terms of payment of interest on the Securities
of that series;
(5) if other than as provided in this Indenture, the
place or places where the principal of (and premium, if any)
and interest, if any, on Securities of that series shall be
payable;
(6) the period or periods within which, the price or
prices at which and the terms and conditions upon which
Securities of that series may be redeemed, in whole or in
part, at the option of the Corporation, if such Securities
are to be subject to redemption;
(7) the obligation, if any, of the Corporation to
redeem or purchase Securities of that series pursuant to any
sinking fund or analogous provisions 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 Securities of that series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof are to be authorized. the
denominations in which Securities of that series shall be
issuable;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of that series
which shall be payable upon a declaration of acceleration of
the maturity thereof pursuant to Section 7.01;
(10) if any of such Securities are to be issuable in
global form, (i) when any of such Securities are to be
issuable in global form; (ii) whether beneficial owners of
interests in any such global Security may exchange such
interests for Securities of the same series and of like
tenor and of any authorized form and denomination, and the
circumstances under which any such exchange may occur, if
9
other than in the manner specified in Section 3.04 hereof,
and (iii) the name of the Depositary with respect to any
global Security, provided that a Depositary must, at the
time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other
applicable statute or regulation; and
(11) any other terms of that series.
SECTION 3.02. Denominations, Dates, Interest Payment and
Record Dates, and Place of Payment. In the absence of any
provision to the contrary with respect to the Securities of any
particular series. the Securities shall be issuable as registered
Securities without coupons in the denominations of $1,000 and any
multiple of $1,000. Every Security shall be dated the date of
its authentication and shall bear interest, if any, from the date
specified in the Board Resolution authorizing the issuance
thereof.
The person in whose name any Security is registered at the
close of business on any record date (as hereinafter in this
Section 3.02 defined) with respect to any interest payment date
shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such
Security upon any registration of transfer or exchange subsequent
to the record date and prior to such interest payment date;
provided, however, that if and to the extent the Corporation
shall default in the payment of the interest due on such interest
payment date, such defaulted interest shall be paid to the
persons in whose names outstanding Securities are registered at
the close of business on a subsequent record date established by
notice given by mail by or on behalf of the Corporation to the
holders of Securities not less than 15 days preceding such
subsequent record date, such record date to be not less than five
days preceding the date of payment of such defaulted interest.
As used in this Section 3.02, the term "record date" for the
interest payable on any Security on any interest payment date
(except a date for payment of defaulted interest) shall mean the
date, if any, specified in such Security as the "record date" for
the interest payable on such Security on any interest payment
date for such Security (except a date for payment of defaulted
interest on such Security).
10
In the absence of any provision to the contrary with respect
to the Securities of any particular series, payment of principal
of (and premium, if any) and interest, if any, on the Securities
of all series shall be made at the Principal Office of the
Trustee, or at any agency to be maintained by the Corporation for
such purpose; provided, however, that payments of installments of
interest, if any, on such Securities may be made at the option of
the Corporation by check mailed to the addresses of the persons
entitled thereto as such addresses appear in the Security
register provided for in Section 3.04.
SECTION 3.03. Execution of Securities. The Securities shall
be signed in facsimile in the name and on behalf of the
Corporation by the Chief Executive Officer, Vice Chairman,
President or any Vice President of the Corporation, under its
corporate seal (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise), attested by its
Secretary or an Assistant Secretary. Only such Securities as
shall bear thereon a certificate of authentication substantially
in the form set forth in Section 2.02, executed by the Trustee,
shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee
upon any Security executed by the Corporation shall be conclusive
evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
In case any officer of the Corporation who shall have signed
any of the Securities, shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered
by the Trustee, or disposed of by the Corporation, such
Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had
not ceased to be such officer of the Corporation; and any
Security may be signed on behalf of the Corporation by such
persons as, at the actual date of the execution of such Security
shall be the proper officers of the Corporation, although at the
date of the execution of this Indenture any such person was not
such an officer.
SECTION 3.04. Exchange and Registration of Transfer of
Securities. Securities of any series may be exchanged for an
equal aggregate principal amount of Securities of other
authorized denominations of the same series. Securities to be
exchanged shall be surrendered at the Principal Office of the
11
Trustee or at any agency to be maintained by the Corporation for
such purpose, as provided in Section 5.02, and the Corporation
shall execute and register, and the Trustee shall authenticate
and deliver in exchange therefor the Security or Securities which
the Securityholder making the exchange shall be entitled to
receive.
The Corporation shall keep at the Principal Office of the
Trustee a register in which, subject to such reasonable
regulations as it may prescribe, the Corporation shall provide
for registration of Securities and registration of transfers of
Securities as in this Article Three provided. Such register
shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all
reasonable times such register shall be open for inspection by
the Trustee and the Corporation. The Trustee is hereby appointed
Security registrar for the purpose of registering Securities and
registering the transfers of Securities as herein provided. Upon
due presentment for registration of transfer of any Security of a
particular series at such office or agency and compliance in full
with the conditions of this Section 3.04, the Corporation shall
execute, the Security registrar shall register, and the Trustee
shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series for
an equal aggregate principal amount.
All Securities presented for registration of transfer or for
exchange or payment shall (if so required by the Corporation or
the Security registrar) be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form
satisfactory to the Corporation and the Security registrar duly
executed by, the holder or his attorney duly authorized in
writing.
No service charge shall be made for any exchange or
registration of transfer of Securities, but the Corporation may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Unless otherwise specified with respect to the Securities of
a specific series as contemplated by Section 3.01(10), if at any
time a Depositary for any Securities of a series issued in global
form notifies the Corporation that it is unwilling or unable to
continue as Depositary for such Securities or if at any time a
Depositary for any Securities of such series issued in global
12
form shall no longer be eligible under the last clause of Section
3.01(10), the Corporation shall appoint a successor Depositary
with respect to the Securities of such series. If a successor
Depositary for such Securities is not appointed by the
Corporation within 90 calendar days after the Corporation
receives such notice or becomes aware of such ineligibility, or
if an Event of Default with respect to such Securities has
occurred and is continuing, such Securities shall,
notwithstanding the terms of the Securities of such series
established pursuant to Section 3.01(10), no longer be issued in
global form and the Corporation will execute, and the Trustee,
upon receipt of the Corporation's written order for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver, in exchange for such
global Security from the Depositary, Securities of such series in
definitive form in authorized denominations, in an aggregate
principal amount equal to the principal amount of each global
Security previously delivered to such Depositary and having like
terms and conditions.
The Corporation may at any time and in its sole discretion
determine that the Securities of any series issued in the form of
a global Security shall no longer be represented by such global
Security. In such event the Corporation will execute, and the
Trustee, upon receipt of the Corporation's written order for the
authentication and delivery of definitive Securities of such
series, will authenticated and deliver, in exchange for such
global Security, Securities of such series in definitive form in
authorized denominations, in an aggregate principal amount equal
to the principal amount of the Securities no longer to be
represented by such global Security and having like terms and
conditions.
If specified by the Corporation with respect to a
series of Securities pursuant to Section 3.01(10), the Depositary
for any Securities of such series represented by a global
Security may surrender such global Security in exchange in whole
or in part for definitive Securities of such series having like
terms and conditions and in definitive form on such terms as are
acceptable to the Corporation and such Depositary. At such
Depositary's request the Corporation shall thereupon execute, and
the Trustee shall authenticate and deliver, (i) to each person
specified by such Depositary a new definitive Security or
Securities of the same series, having like terms and conditions
and in any authorized denomination as requested by such person in
13
aggregate principal amount equal to and in exchange for such
person's beneficial interest in the global Security so
surrendered and (ii) to such Depositary a new global Security
which is of like terms and conditions and in a denomination equal
to the difference, if any, between the principal amount of the
surrendered global Security and the aggregate principal amount of
definitive Securities delivered to each such person as provided
in clause(i).
Such Securities in definitive form issued pursuant to the
preceding paragraphs of this Section 3.04 shall be registered in
such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants, or otherwise, shall instruct the Corporation.
After authentication, the Trustee shall deliver such definitive
Securities to the persons in whose names such Securities are so
registered.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen
Securities. In case any temporary or permanent Security shall
become mutilated or be destroyed, lost or stolen, the Corporation
in its discretion may execute, and upon its request the Trustee
shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Security, or in lieu
of and in substitution for the Security so destroyed, lost or
stolen. In every case the applicant for a substituted Security
shall furnish to the Corporation, to the Security registrar, any
paying agent 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 Corporation, to the Security registrar, to any
paying agent and to the Trustee evidence to their satisfaction of
the destruction, loss or theft of such Security and of the
ownership thereof.
The Trustee may authenticate any substituted Security and
deliver the same upon the written request or authorization of any
officer of the Corporation. Upon the issuance of any substituted
Security, the Corporation 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
counsel fees of the Corporation, the Trustee, any paying agent or
Security registrar connected therewith. In case any Security
which has matured or is about to mature shall become mutilated or
14
be destroyed, lost or stolen, the Corporation may, instead of
issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a
mutilated Security) if the applicant for such payment shall
furnish to the Corporation, to the Security registrar, any paying
agent and to the Trustee such security or indemnity as may be
required by them to save each of them harmless and, in case of
destruction, loss or theft, evidence satisfactory to the
Corporation, the Security registrar and the Trustee of the
destruction, loss or theft of such Security and of the ownership
thereof.
Every substituted Security issued pursuant to the provisions
of this Section 3.05 by virtue of the fact that any Security is
destroyed, lost or stolen shall constitute an additional
contractual obligation of the Corporation, whether or not the
destroyed, lost or stolen Security shall be enforceable at any
time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities
duly issued hereunder. All Securities 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 Securities and shall
preclude to the extent permitted by law 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 3.06. Temporary Securities. Pending the preparation
of permanent Securities of any series, the Corporation may
execute and the Trustee shall authenticate and deliver temporary
Securities (printed or lithographed) of such series. Temporary
Securities of any series shall be issuable in any authorized
denomination, and substantially in the form of the permanent
Securities of such series, but with such omissions, insertions
and variations as may be appropriate for temporary Securities of
such series, all as may be determined by the Corporation. Every
such temporary Security shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner,
and with the same effect, as the permanent Securities of such
series. Without unreasonable delay the Corporation will execute
and deliver to the Trustee permanent Securities of such series
and thereupon any or all temporary Securities of such series may
be surrendered in exchange therefor at the Principal Office of
15
the Trustee or at any agency to be maintained by the Corporation
for such purpose as provided in Section 5.02, and the Trustee
shall authenticate and deliver in exchange for such temporary
Securities an equal aggregate principal amount of permanent
Securities of such series. Such exchange shall be made by the
Corporation at its own expense and without any charge therefor
except that the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto. Until so exchanged, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under, and be subject to the terms
and conditions of, this Indenture as permanent Securities of the
same series authenticated and delivered hereunder.
SECTION 3.07. Cancellation of Securities Paid, etc. All
Securities surrendered for the purpose of payment, exchange or
registration of transfer shall, if surrendered to the Corporation
or any agent for exchange and registration of transfer, be
surrendered to the Trustee for cancellation and promptly
cancelled by it, or, if surrendered to the Trustee, shall be
promptly cancelled by it, and no Securities shall be issued in
lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall destroy
cancelled Securities and deliver a certificate of such
destruction to the Corporation. If the Corporation shall acquire
any of the Securities, however, such acquisition shall not
operate as a satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the
Trustee for cancellation.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of This Article. Redemption of
Securities (whether by operation of a sinking fund or otherwise)
as permitted or required by any form of Security issued pursuant
to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any
provision of any such form of Security shall conflict with any
provision of this Article, the provision of such form of Security
shall govern. Except as otherwise set forth in the form of
Security for such series, each Security shall be subject to
partial redemption only in the amount of $1,000 or integral
multiples of $1,000.
16
SECTION 4.02. Election to Redeem: Notice to Trustee. The
election of the Corporation to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Corporation of less than all of
the Securities of any particular series, the Corporation shall,
at least 45 days prior to the date fixed for redemption (unless a
shorter notice shall be satisfactory to the Trustee) notify the
Trustee of such date and of the principal amount of Securities of
that series to be redeemed.
SECTION 4.03. Selection of Securities to be Redeemed. If
less than all the Securities of a particular series are to be
redeemed, the Trustee shall select, in such manner as in its sole
discretion it shall deem appropriate and fair, the Securities or
portions thereof of such series to be redeemed. The Trustee
shall promptly notify the Corporation in writing of the
Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to
be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not
later than the thirtieth day, and not earlier than the sixtieth
day, prior to the date fixed for redemption, to each holder of
Securities to be redeemed, at his address as it appears on the
registry books of the Corporation.
With respect to Securities of each series to be redeemed,
each notice of redemption shall state:
(1) the date fixed for redemption for Securities of
such series;
(2) the redemption price at which Securities of such
series are to be redeemed;
(3) if less than all outstanding Securities of such
particular series are to be redeemed, the identification
(and, in the case of partial redemption, the respective
17
principal amounts) of the particular Securities to be
redeemed;
(4) that on the date fixed for redemption, the
redemption price at which such Securities are to be redeemed
will become due and payable upon each such Security or
portion thereof, and that interest thereon, if any, shall
cease to accrue on and after said date;
(5) the place or places where such Securities are to
be surrendered for payment of the redemption price at which
such Securities are to be redeemed; and
(6) that the redemption is for a sinking fund, if such
is the case.
Notice of redemption of Securities to be redeemed at the
election of the Corporation shall be given by the Corporation or,
at the Corporation's request, by the Trustee in the name and at
the expense of the Corporation. The notice if mailed in the
manner herein provided shall be conclusively presumed to have
been duly given, whether or not the holder receives such notice.
In any case, a failure to give such notice by mail or any defect
in the notice to the holder of any Security designated for
redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.
SECTION 4.05. Deposit of Redemption Price. Prior to or on
the redemption date specified in the notice of redemption given
as provided in Section 4.04, the Corporation will deposit with
the Trustee or with one or more paying agents an amount of money
sufficient to redeem on the redemption date all the Securities so
called for redemption at the applicable redemption price.
SECTION 4.06. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section
4.04, the Securities or portions of Securities with respect to
which such notice has been given shall become due and payable on
the date and at the place or places stated in such notice at the
applicable redemption price. On presentation and surrender of
such Securities at a place of payment in said notice specified,
the said Securities or the specified portions thereof shall be
paid and redeemed by the Corporation at the applicable redemption
price.
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Upon presentation of any Security redeemed in part only, the
Corporation shall execute and the Trustee shall authenticate and
deliver to the holder thereof, at the expense of the Corporation,
a new Security or Securities of the same series, of authorized
denominations. in aggregate principal amount equal to the
unredeemed portion of the Security so presented.
Section 4.07. Delegation of Duties by Trustee. Except in
regard to Section 4.03, any reference in this Article to the
Trustee with respect to its duties in regard to the redemption of
any Securities shall be deemed to also include any entity
designated by the Corporation with the consent of the Trustee to
act as its agent for the performance of all or any of its duties
under this Article.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 5.01. To Pay Principal (and Premium if any) and
Interest. The Corporation will duly and punctually pay, or cause
to be paid, the principal of (and premium, if any) and interest,
if any, on each and every Security at the times and place and in
the manner provided herein and in such Securities. Interest upon
Securities shall be payable without presentment of such
Securities, and only to or upon the written order of the
registered holders thereof determined as provided in Section
3.02. The Corporation shall have the right to require a
Securityholder, in connection with the payment of the principal
of (and premium, if any) or interest, if any, on a Security, to
present at the office or agency of the Corporation at which such
payment is made a certificate, in such form as the Corporation
may from time to time prescribe, to enable the Corporation to
determine its duties and liabilities with respect to any taxes,
assessments or governmental charges which it may be required to
deduct or withhold therefrom under any present or future law of
the United States of America or of any state, county,
municipality or taxing or withholding authority therein, and the
Corporation shall be entitled to determine its duties and
liabilities with respect to such deduction or withholding on the
basis of information contained in such certificate or, if no such
certificate shall be so presented, on the basis of any
presumption created by any such law, and shall be entitled to act
in accordance with such determination.
19
SECTION 5.02. To Maintain Office or Agency. So long as any
Securities remain outstanding, the Corporation will maintain an
office or agency where the Securities may be presented for
payment, where the Securities may be presented for registration
of transfer and exchange as in this Indenture provided and where
notices or demands to or upon the Corporation in respect of the
Securities or of this Indenture may be served. The Corporation
hereby initially appoints the Trustee as its agent for all such
purposes until otherwise designated by the Corporation in a
written notice to the Trustee, the office or agency for all such
purposes shall be the Principal Office of the Trustee. In case
the Corporation shall at any time designate a different office or
agency for such purposes, but shall fail to maintain such office
or agency, or shall fail to give notice to the Trustee of any
change in the location thereof, presentation and demand may be
made and notices may be served, in respect of the Securities or
of this Indenture, at the Principal Office of the Trustee, and
the Corporation hereby appoints the Trustee its agent to receive
all such presentations, surrenders, notices and demands.
In addition to any such office or agency the Corporation may
from time to time constitute and appoint one or more paying
agents for the payment of such Securities, in one or more other
cities, and may from time to time rescind such appointments, as
the Corporation may deem desirable or expedient.
SECTION 5.03. To Fill a Vacancy in the Office of Trustee.
The Corporation, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in
Article Eight, a Trustee, so that there shall at all times be a
Trustee hereunder.
SECTION 5.04. Appointment of Paying Agents; Money for
Security Payments to Be Set Aside in Trust; Transfer or Moneys
Held by Paying Agents. (a) If as to any series of Securities, the
Corporation shall appoint a paying agent other than the Trustee,
it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such paying agent shall agree with
the Trustee, subject to the provisions of this Section 5.04:
(1) that it will hold all sums held by it as such
paying agent for the payment of the principal of (and
premium, if any) or interest, if any, on such Securities in
trust for the benefit of the holders of the Securities
entitled thereto, or for the benefit of the Trustee, as the
20
case may be, until such sums shall be paid out to such
holders or otherwise as herein provided;
(2) that it will give the Trustee notice of any
failure by the Corporation in the making of any deposit with
such paying agent for the payment of principal of (and
premium, if any) or interest, if any, on such Securities
which shall have become payable and of any default by the
Corporation in making any payment of the principal of (and
premium, if any) or interest on such Securities when the
same shall be due and payable, and
(3) that it will at any time during the continuance of
any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such paying agent.
(b) If the Corporation shall act as its own paying agent as
to any series of Securities, it will, on or before each due date
of the principal of (and premium, if any) or interest, if any, on
such Securities, set aside and hold in trust for the benefit of
the holders of such Securities entitled thereto a sum sufficient
(together with any sums deposited with any other paying agent for
such purpose) to pay such principal (and premium, if any) or
interest, if any, so becoming due and will notify the Trustee of
any, failure by it to take such action. Whenever the Corporation
shall have one or more paying agents with respect to any
particular series of Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest if
any, on the Securities, deposit with a paying agent a sum
sufficient to pay such principal (and premium, if any) or
interest so becoming due, such sums to be held in trust for the
benefit of the holders of such Securities entitled thereto, and
(unless the paying agent is the Trustee) the Corporation will
notify the Trustee of failure by it to take such action.
(c) Anything in this Section 5.04 to the contrary
notwithstanding, the Corporation may at any time, for the purpose
of obtaining the satisfaction and discharge of this Indenture, or
for any other purpose, pay or cause to be paid to the Trustee all
sums held in trust by the Corporation or any paying agent as
required by this Section 5.04, such sums to be held by the
Trustee upon the trusts herein contained.
21
(d) Anything in this Section 5.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section 5.04 is subject to the provisions of Sections
13.03 and 13.04.
SECTION 5.05. Maintenance of Corporate Existence, Rights and
Franchises. So long as any of the Securities shall be
outstanding, the Corporation will do or cause to be done all
things necessary to preserve and keep in full force and effect
its corporate existence, rights and franchises to carry on its
business; provided that nothing in this Section 5.05 shall
prevent (i) any consolidation or merger of the Corporation, or
any sale or conveyance of all or substantially all its property
and assets, permitted by Article Twelve, or (ii) the liquidation
or dissolution of the Corporation after a sale or conveyance of
all or substantially all its property and assets permitted by
Article Twelve.
SECTION 5.06. Certificate as to No Default. The Corporation
hereby agrees to deliver to the Trustee, within 120 days after
the end of each fiscal year of the Corporation, commencing with
the fiscal year ending December 31, 1997, an Officers'
Certificate, which need not comply with the provisions of Section
16.05, to the effect that, to the knowledge of the signers
thereof, the Corporation is not in default under any provision of
this Indenture or, if such signers have knowledge of any such
default, stating the same and the nature and status thereof.
ARTICLE SIX
SECURITYHOLDERS LISTS AND REPORTS BY THE CORPORATION
AND THE TRUSTEE
SECTION 6.01. Securityholder Lists. The Corporation covenants
and agrees that, with respect to each series of Securities. it
will furnish or cause to be furnished to the Trustee, (a)
semiannually, not less than 45 days nor more than 60 days after
(i) each record date for the payment of interest on any interest
payment date (except a date for payment of defaulted interest) in
the case of interest-bearing Securities or (ii) the last business
day of each June and December in the case of non-interest-bearing
Securities, and (b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the
Corporation of any such request, a list in such form as the
Trustee may reasonably require of the names and addresses of the
holders of Securities of such series as of a date not more than
22
15 days prior to the time such information is furnished;
provided, however, that if the Trustee shall be the Security
registrar, such list shall not be required to be furnished.
SECTION 6.02. Preservation and Disclosure of Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished
to it as provided in Section 6.01 and received by the Trustee in
its capacity as Security registrar or paying agent if so acting.
The Trustee may destroy any list furnished to it as provided in
Section 6.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities of any
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 Security of such series for a
period of at least six months preceding the date of such
application, and such application states that the applicants
desire to communicate with other holders of Securities of such
series with respect to their rights under this Indenture or under
the Securities of such series 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 such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 6.02, or
(2) inform such applicants as to the approximate
number of holders of Securities of such series 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 6.02, and as to the
approximate cost of mailing to such Securityholders the form
of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each holder of Securities of
such series whose name and address appears in the information
preserved at the time by the Trustee in accordance with the
23
provisions of subsection (a) of this Section 6.02 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,
together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of
Securities of such series or would be in violation of applicable
law. Such written statement shall specify the basis of such
opinion. If said 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, said 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 Securityholders
with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise, the Trustee shall be relieved
of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of the Securities, by receiving
and holding the same, agrees with the Corporation and the Trustee
that neither the Corporation nor the Trustee nor any paying agent
nor any Security registrar shall be held accountable by reason of
the disclosure of any such information as to the names and
addresses of the holders of Securities in accordance with the
provisions of subsection (b) of this Section 6.02, 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 (b).
SECTION 6.03. Reports by the Corporation. (a) The
Corporation covenants and agrees to file with the Trustee within
30 days after the Corporation is required to file the same with
the Securities and Exchange Commission, copies of the annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said
Commission may from time to time by rules and regulations
prescribe) which the Corporation may be required to file with
said Commission pursuant to section 13 or section 15(d) of the
24
Securities Exchange Act of 1934, as amended; or, if the
Corporation is not required to file information, documents or
reports pursuant to either of such sections, then to file with
the Trustee and said Commission, in accordance with rules and
regulations prescribed from time to time by said Commission. such
of the supplementary and periodic information, documents and
reports which may be required pursuant to section 13 of the
Securities Exchange Act of 1934, as amended, 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 Corporation covenants and agrees to file with the
Trustee and the Securities and Exchange Commission, in accordance
with the rules and regulations prescribed from time to time by
said Commission, such additional information, documents and
reports with respect to compliance by the Corporation 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 Corporation covenants and agrees to transmit by
mail to all holders of Securities, as the names and addresses of
such holders appear upon the registry books of the Corporation,
within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to
be filed by the Corporation pursuant to subsection (a) or (b) of
this Section 6.03 as may be required by rules and regulations
prescribed from time to time by the Securities and Exchange
Commission.
SECTION 6.04. Reports by the Trustee. (a) On or before
October 1, 1997, and on or before October 1 in every year
thereafter, so long as any Securities are outstanding hereunder,
the Trustee shall transmit to the Securityholders for which it is
acting as Trustee, as hereinafter in this Section 6.04 provided,
a brief report dated as of the preceding September 1 with respect
to:
(1) its eligibility under Section 8.09, and its
qualification under Section 8.08, or in lieu thereof, if to
the best of its knowledge it has continued to be eligible
and qualified under such Sections, a written statement to
such effect;
25
(2) 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 Securities with respect to
which it is acting as Trustee, on any property or funds held
or collected by it as Trustee, except that the Trustee shall
not be required (but may elect) to state such advances if
such advances so remaining unpaid aggregate not more than
one-half of one percent of the principal amount of such
Securities outstanding on the date of such report;
(3) the amount, interest rate, and the maturity date
of all other indebtedness owing by the Corporation (or by
any other obligor on such Securities) 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 an indebtedness based upon a
creditor relationship arising in any manner described in
paragraph (2), (3), (4) or (6) of subsection (b) of Section
8.13;
(4) the property and funds, if any, physically in the
possession of the Trustee, as such, at the date of such
report;
(5) any additional issue of Securities with respect to
which it is acting as Trustee which it has not previously
reported; and
(6) 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 such Securities, except 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 7.08.
(b) The Trustee shall transmit to the Securityholders with
respect to which it is acting as Trustee, as hereinafter
provided, 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 6.04 (or, if
26
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
Securities with respect to which it is acting as Trustee on
property or funds held or collected by it as Trustee, and which
it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any
time aggregate ten percent or less of the principal amount of
such Securities outstanding at such time, such report to be
transmitted within ninety days after such time.
(c) Reports pursuant to this Section 6.04 shall be
transmitted by first class mail, postage prepaid to all holders
of Securities as the names and addresses of such holders appear
upon the registry books of the Corporation.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with
each stock exchange upon which the Securities with respect to
which it is acting as Trustee are listed and also with the
Securities and Exchange Commission. The Corporation will notify
the Trustee when and as such Securities become listed on any
stock exchange.
ARTICLE SEVEN
EVENTS OF DEFAULT: REMEDIES OF THE TRUSTEE
AND SECURITYHOLDERS
SECTION 7.01. Events of Default; Remedies. The occurrence
of any of the following events shall constitute an Event of
Default hereunder with respect to any particular series of
Securities:
(a) default in the due and punctual payment of any
installments of interest upon any of the Securities of that
series as and when the same shall become due and payable and
continuance of such default for a period of 30 days: or
(b) default in the due and punctual payment of the
principal of (or premium, if any, on) any of the Securities
of that series as and when the same shall become due and
payable either at maturity, by declaration as authorized by
this Indenture, or otherwise; or
27
(c) failure on the part of the Corporation duly to
observe or perform any other of the covenants or agreements
on the part of the Corporation set forth in the Securities
of that series or in this Indenture (other than those set
forth exclusively in the terms of Securities of any series
other than that series) continued for a period of sixty days
after there has been given, by registered or certified mail,
to the Corporation by the Trustee, or to the Corporation and
the Trustee by the holders of at least thirty-three percent
in principal amount of the Securities of that series at the
time outstanding, a written notice specifying such failure
and requiring the same to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(d) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of
the Corporation in an involuntary case under the Federal
Bankruptcy Code adjudging the Corporation a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or
in respect of the Corporation under the Federal Bankruptcy
Code or any other applicable Federal or State law, or
appointing a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar official) of the
Corporation, or of any substantial part of the respective
properties of either, or ordering the winding up or
liquidation of the affairs of either, and the continuance of
any such decree or order unstayed and in effect for a period
of 120 days; or
(e) the institution by the Corporation of proceedings
to be adjudicated a bankrupt or insolvent, or the consent by
the Corporation to the institution of bankruptcy or
insolvency proceedings against it, or the filing by the
Corporation of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code
or any other applicable Federal or State law, or the consent
by the Corporation to the filing of any such petition or to
the appointment of a receiver, liquidator, custodian,
assignee, trustee, sequestrator (or other similar official)
of the Corporation, or of any substantial part of the
respective properties of either, or the making by the
Corporation of an assignment for the benefit of creditors,
or the admission by the Corporation in writing of its
inability to pay its debts generally as they become due, or
28
the taking of corporate action by the Corporation in
furtherance of any such action.
In case one or more of the Events of Default specified above
shall have occurred and be continuing with respect to any
particular series of Securities, then and in each and every such
case, unless the principal of all of the Securities of that
series shall have already become due and payable, either the
Trustee or the holders of not less than thirty-three percent in
aggregate principal amount of the Securities of that series then
outstanding hereunder, by notice in writing to the Corporation
(and to the Trustee if given by Securityholders), may declare the
principal or, in the case of Discounted Securities, such amount
of principal as may be provided for in such Securities, of all
the Securities 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 in this Indenture or in the
Securities of that series contained to the contrary
notwithstanding. This provision, however, is subject to the
condition that if, at any time after such principal or such
amount of principal, as the case may be, shall have been so
declared due and payable, and before any judgment or decree for
the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Corporation shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all Securities of that series and
the principal of (and premium, if any, on) any and all Securities
of that series which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest
(to the extent that payment of such interest is enforceable under
applicable law) and on such principal (and premium, if any) at
the rate of interest (or, in the case of Discounted Securities,
at the Yield to Maturity) borne by such Securities, to the date
of such payment or deposit) and the expenses of the Trustee, and
any and all defaults under this Indenture with respect to the
Securities of the series, other than the nonpayment of principal
of (and premium, if any) and accrued interest on the Securities
of that series which shall have become due by acceleration shall
have been remedied-then and in every such case the holder of a
majority in aggregate principal amount of the Securities of that
series then outstanding, by written notice to the Corporation and
to the Trustee, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
29
In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason or shall have been
determined adversely to the Trustee, then and in every such case
the Corporation and the Trustee shall be restored respectively to
their several positions and rights hereunder, and all rights,
remedies and powers of the Corporation and the Trustee shall
continue as though no such proceeding had been taken.
SECTION 7.02. Payment of Securities on Default; Suit
Therefor. The Corporation covenants that (a) in case default
shall be made in the payment of any installment of interest upon
any of the Securities of any series as and when the same shall
become due and payable, and such default shall have continued for
a period of thirty days, or (b) in case default shall be made in
the payment of the principal of (or premium, if any, on) any of
the Securities of any series as and when the same shall have
become due and payable, whether at maturity of the Securities of
that series or by declaration or otherwise, then, upon demand of
the Trustee, the Corporation will pay to the Trustee, for the
benefit of the holders of such Securities, the whole amount that
then shall have become due and payable on all such Securities for
principal (and premium, if any) or interest, if any, with
interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest at the
rate of interest (or the Yield to Maturity in the case of
Discounted Securities) borne by the Securities of that series;
and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any expenses or liabilities incurred,
and all advances made, by the Trustee hereunder other than
through its negligence or bad faith.
In case the Corporation 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 actions 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 Corporation
or any other obligor on such Securities and collect in the manner
provided by law out of the property of the Corporation or any
30
other obligor on such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Corporation or any
other obligor on the Securities of any series under the Federal
Bankruptcy Code or any other applicable law, or in case a
receiver, custodian or trustee shall have been appointed for the
property of the Corporation or such other obligor, or in the case
of any similar judicial proceedings relative to the Corporation
or other obligor upon such Securities, or to the creditors or
property of the Corporation or such other obligor, the Trustee,
irrespective of whether the principal of such Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 7.02, shall
be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims, for the whole
amount of principal (and premium, if any) and interest, if any
owing and unpaid in respect of such Securities, and in case of
any judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of such
Securities allowed in such judicial proceedings relative to the
Corporation or any other obligor on such Securities, its or their
creditors, or its or their property, and to collect and receive
any moneys or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its
charges and expenses; and any receiver, custodian, assignee or
trustee in bankruptcy or reorganization is hereby authorized by
each of the Securityholders to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of
such payments directly to the Securityholders, to pay to the
Trustee any amount due it for compensation and expenses,
including counsel fees incurred by it up to the date of such
distribution.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the
Trustee without the possession of any of the Securities, or the
production thereof in any trial or other proceeding relative
thereto, and any 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 be for the ratable benefit of
31
the holders of the Securities in respect of which such judgment
has been recovered.
SECTION 7.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the order
following, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the Securities
in respect of which moneys have been collected, 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 reasonable compensation to the Trustee, its
agents, attorneys and counsel, and of all other expenses and
liabilities incurred, and all advances made, by the Trustee
except as a result of its negligence or bad faith;
SECOND: In case the principal of the outstanding
Securities in respect of which moneys have been collected
shall not have become due and be unpaid, to the payment of
interest, if any, on such Securities, in the order of the
maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the
rate of interest (or the Yield to Maturity in the case of
Discounted Securities) borne by such Securities, such
payments to be made ratably to the persons entitled thereto;
THIRD: In case the principal of the outstanding
Securities in respect of which moneys have been collected
shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon such
Securities for principal (and premium, if any) and interest,
if any, with interest on the overdue principal (and premium,
if any) and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of
interest at the rate of interest (or the Yield to Maturity
in the case of Discounted Securities) borne by such
Securities; and in case such moneys shall be insufficient to
pay in full the whole amounts so due and unpaid upon such
Securities, then to the payment of such principal (and
premium, if any) and interest without preference or priority
of principal (and premium, if any) over interest, or of
interest over principal (and premium, if any) or of any
installment of interest over any other installment of
32
interest, or of any such Security over any other such
Security, ratably to the aggregate of such principal (and
premium, if any) and accrued and unpaid interest; and,
FOURTH: To the payment of the remainder, if any, to
the Corporation, its successors or assigns, or to whomsoever
may be lawfully entitled to receive the same, or as a court
of competent jurisdiction may direct.
SECTION 7.04. Proceedings by Securityholders. No holder of
any Security of any series shall have any right by virtue of 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 default and of the continuance thereof, as hereinbefore
provided, and unless also the holders of not less than twenty-
five percent in aggregate principal amount of the Securities of
that 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 sixty days after its receipt of such
notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding, it
being understood and intended, and being expressly covenanted by
the taker and holder of every Security with every other taker and
holder and the Trustee, that no one or more holders of Securities
of that series shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the right of any other holder of
such Securities, or to obtain or seek to obtain priority over or
preference to any such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Securities of
that series.
Notwithstanding any other provisions in this Indenture, the
right of any holder of any Security to receive payment of the
principal of (and premium, if any) and interest, if any, on such
Security, on or after the respective due dates expressed in such
Security, or to institute suit for the enforcement of any such
33
payment on or after such respective dates shall not be impaired
or affected without the consent of such holder.
SECTION 7.05. Proceedings by Trustee. 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
by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
SECTION 7.06. Remedies Cumulative and Continuing. All
powers and remedies given by this Article Seven to the Trustee or
to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any
other powers and remedies available to the Trustee or the holders
of the Securities, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission
of the Trustee or of any holder of any of the Securities to
exercise any right or power accruing upon any 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
7.04, every power and remedy given by this Article Seven or by
law to the Trustee or to the Securityholders may be exercised
from time to time and as often as shall be deemed expedient by
the Trustee or by the Securityholders.
SECTION 7.07. Direction of Proceedings and Waiver of
Defaults By Majority of Securityholders. The holders of a
majority in aggregate principal amount of the Securities of any
series at the time outstanding determined in accordance with
Section 9.04 shall have the right to direct the time, method, and
place of conducting any proceedings for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of that series; provided,
however, that (subject to the provisions of Section 8.01) the
Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that
the action or proceeding so directed may not lawfully be taken or
34
if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors
or trustees and/or Responsible Officers shall determine that the
action or proceedings so directed would involve the Trustee in
personal liability. Prior to any declaration accelerating the
maturity of the Securities of any series, the holders of a
majority in aggregate principal amount of the Securities
determined in accordance with Section 9.04 of that series at the
time outstanding may on behalf of the holders of all Securities
of that series waive any past default or Event of Default
hereunder and its consequences except a default in the payment of
the principal of (or premium, if any) or interest on the
Securities of that series. Upon any such waiver the Corporation,
the Trustee and the holders of such Securities shall be restored
to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default hereunder shall have
been waived as permitted by this Section 7.07, said default or
Event of Default shall for all Purposes of the Securities of such
series and this Indenture with respect to such Securities be
deemed to have been cured and to be not continuing.
SECTION 7.08. Notice of Defaults. The Trustee shall, within
ninety days after the occurrence of a default with respect to the
Securities of any series, mail to all holders of such Securities,
as the names and addresses of such holders appear upon the
registry books of the Corporation, notice of all defaults known
to the Trustee, unless such defaults shall have been cured before
the giving of such notice (the term "defaults" for the purpose of
this Section 7.08 being hereby defined to be the events specified
in clauses (a), (b), (c), (d) and (e) of Section 7.01, not
including periods of grace, if any, provided for therein and
irrespective of the giving of the notice specified in clause (c)
of Section 7.01); provided that, except in the case of default in
the payment of the principal of (or premium, if any) or interest,
if any, on any such Securities, the Trustee shall be protected in
withholding such notice if and so long as the board of directors
or trustees, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interests of the holders of such Securities.
SECTION 7.09. Undertaking to Pay Costs. All parties to this
Indenture agree, and each holder of any Security by his
35
acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the
provisions of this Section 7.09 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the
aggregate more than ten percent in principal amount of the
Securities outstanding of any series, or to any suit instituted
by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on any
Security against the Corporation on or after the due date
expressed in such Security.
ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01. Duties and Responsibilities of Trustee. With
respect to the Securities of any particular series the Trustee,
prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are
specificallv set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured or waived) with
respect to the Securities of any particular series the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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
(a) prior to the occurrence of an Event of Default
with respect to the Securities of any particular series and
after the curing or waiving of all Events of Default with
36
respect to the Securities of any particular series which may
have occurred:
(1) the duties and obligations of the Trustee
with respect to the Securities of such series shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any 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;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
and
(c) the Trustee shall not be liable with respect to any
action taken, suffered 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 Securities
of any particular series at the time outstanding determined
as provided in Section 9.04 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.
SECTION 8.02. Reliance on Documents, Opinions, etc. Subject
to the provisions of Section 8.01
37
(a) the Trustee may rely and shall be protected in
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, coupon or other paper or
document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the
Corporation mentioned herein shall be sufficiently evidenced
by an Officers' Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the
Trustee by a Board Resolution;
(c) the Trustee may consult with counsel and any advice
or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(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
Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action
taken, suffered or omitted 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) prior to the occurrence of an Event of Default with
respect to the Securities of any particular series hereunder
and after the curing or waiving of all Events of Default
with respect to the Securities of such series, 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, debenture, coupon or other paper or
document, unless requested in writing to do so by the
holders of not less than a majority in principal amount of
the Securities of such series then outstanding; provided,
38
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 expense or liability as a condition to so
proceeding; 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 by it with due care
hereunder.
SECTION 8.03. No Responsibility for Recitals, etc. The
recitals contained herein and in the Securities (except in the
Trustee's certificate of authentication) shall be taken as the
statements of the Corporation, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of
this Indenture or the Securities. The Trustee shall not be
accountable for the use or application by the Corporation of any
Securities or the proceeds of any Securities authenticated and
delivered by the Trustee in conformity with the provisions of
this Indenture.
SECTION 8.04. Trustee, Paying Agent or Registrar May Own
Securities. The Trustee or any paying agent or Security
registrar, in its individual or any other capacity, may become
the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security registrar.
SECTION 8.05. Moneys to Be Held in Trust. Subject to the
provisions of Section 13.04, all moneys received by the Trustee
or any paying agent shall, until used or applied as herein
provided, be held in trust for the purposes for which they were
received. Neither the Trustee nor any paying agent shall be
under any liability for interest on any moneys received by it
hereunder except such as it may agree with the Corporation to pay
thereon. So long as no Event of Default shall have occurred and
be continuing, all interest allowed on any such moneys shall be
paid from time to time upon the written order of the Corporation,
signed by any one of the Chairman of the Board, the Chief
39
Executive Officer, the Vice Chairman, the President, a Vice
President, the Secretary, an Assistant Secretary, the Treasurer
or an Assistant Treasurer of the Corporation.
SECTION 8.06. Compensation and Expenses of Trustee. The
Corporation covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust),
and the Corporation 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 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 Corporation also covenants to indemnify the
Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part
of the Trustee and arising out of or in connection with the
acceptance or administration of this trust or the performance of
its duties hereunder, including the reasonable costs and expenses
of defending itself against any claim of liability in the
premises. The obligations of the Corporation under this Section
8.06 to compensate the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness
shall have a prior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of
particular Securities.
SECTION 8.07. Officers' Certificate as Evidence. Subject to
the provisions of Section 8.01, whenever in the administration of
the previsions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to
the Trustee, and such Certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.
40
SECTION 8.08. Conflicting Interest of Trustee. (a) If the
Trustee has or shall acquire any conflicting interest with
respect to the Securities of any series, as defined in this
Section 8.08, it shall, within 90 days after ascertaining that it
has such conflicting interest, either eliminate such conflicting
interest or resign with respect to the Securities of that series
in the manner and with the effect specified in Section 8.10.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section 8.08 with
respect to the Securities of any particular series, the Trustee
shall, within ten days after the expiration of such 90-day
period, mail notice of such failure to all holders of Securities
of that series, as the names and addresses of such holders appear
upon the registry books of the Corporation.
(c) For the purposes of this Section 8.08 the Trustee shall
be deemed to have a conflicting interest with respect to the
Securities of any particular series if:
(1) the Trustee is trustee under this Indenture with
respect to the outstanding Securities of any other series or is
trustee under another indenture under which any other securities,
or certificates of interest or participation in any other
securities, of the Corporation, are outstanding, unless such
other indenture is a collateral trust indenture under which the
only collateral consists of Securities of that series; provided
that there shall be excluded from the operation of this paragraph
this Indenture with respect to the Securities of any other series
other than that series or any other indenture or indentures under
which other securities, or certificates of interest or
participation in other securities, of the Corporation, are
outstanding if (i) this Indenture and such other indenture or
indentures are wholly unsecured and such other indenture or
indentures are hereafter qualified under the Trust Indenture Act
of 1939, unless the Securities and Exchange Commission shall have
found and declared by order pursuant to subsection (b) of Section
305 or subsection (c) of Section 307 of the Trust Indenture Act
of 1939 that differences exist between the provisions of this
Indenture with respect to the Securities of that series and such
other series or the provisions of such other indenture or
indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee from acting
41
as such under this Indenture with respect to the Securities of
that series and such other series or such other indenture or
indentures, or (ii) the Corporation shall have sustained the
burden of proving, on application to the Securities and Exchange
Commission and after opportunity for hearing thereon, that the
trusteeship under this Indenture with respect to the Securities
of that series and such other series or such other indenture is
not so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to Securities of one or more series
or under one of such indentures;
(2) the Trustee or any of its directors or executive
officers is an obligor upon the Securities of any series issued
under this Indenture or an underwriter for the Corporation;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with the Corporation or an underwriter
for the Corporation;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee, or
representative of the Corporation, or of an underwriter (other
than the Trustee itself) for the Corporation who is currently
engaged in the business of underwriting, except that (A) one
individual may be a director and/or an executive officer of the
Trustee and a director and/or an executive officer of the
Corporation, but may not be at the same time an executive officer
of both the Trustee and the Corporation; (B) if and so long as
the number of directors of the Trustee in office is more than
nine, one additional individual may be a director and/or an
executive officer of the Trustee and a director of the
Corporation; and (C) the Trustee may be designated by the
Corporation or by an underwriter for the Corporation to act in
the capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent, escrow agent, or depositary, or in any other
similar capacity, or, subject to the provisions of paragraph (1)
of this subsection (c), to act as trustee whether under an
indenture or otherwise;
(5) ten percent or more of the voting securities of the
Trustee is beneficially owned either by the Corporation or by any
director, partner, or executive officer thereof, or twenty
42
percent or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or ten percent
or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Corporation or by any
director, partner, or executive officer thereof, or is
beneficially owned, collectively, by any two or more such
persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, (A)
five percent or more of the voting securities, or ten percent or
more of any other class of security, of the Corporation, not
including the Securities of any series with respect to which the
Trustee is acting as such and securities issued under any other
indenture under which the Trustee is also trustee, or (B) ten
percent or more of any class of security of an underwriter for
the Corporation;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, five
percent or more of the voting securities of any person who, to
the knowledge of the Trustee, owns ten percent or more of the
voting securities of, or controls directly or indirectly or is
under direct or indirect common control with, the Corporation;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, ten
percent or more of any class of security of any person who, to
the knowledge of the Trustee, owns fifty percent or more of the
voting securities of the Corporation; or
(9) the Trustee owns on May 15 in any calendar year, in the
capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of twenty-five percent or more of
the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of
which would have constituted a conflicting interest under
paragraphs (6), (7), or (8) of this subsection (c). As to any
such securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an
estate which included them, the provisions of the preceding
sentence shall not apply, for a period of two years from the date
of such acquisition, to the extent that such securities included
in such estate do not exceed twenty-five percent of such voting
43
securities or twenty-five percent of any such class of security.
Promptly after May 15, in each calendar year, the Trustee shall
make a check of its holdings of such securities in any of the
above-mentioned capacities as of such May 15. If the Corporation
fails to make payment in full of principal of (or premium, if
any) or interest on any of the Securities when and as the same
become due and payable, and such failure continues for thirty
days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day period
and, after such date, notwithstanding the foregoing provisions of
this paragraph (9), all such securities so held by the Trustee,
with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection (c).
The specifications of percentages in paragraphs (5) to (9),
inclusive, of this subsection (c) shall not be construed as
indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities"
shall include only such securities as are generally known as
corporate securities, but shall not include any note or other
evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (B)
an obligation shall be deemed to be in default when a default in
payment of principal shall have continued for thirty days or more
and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or holder of (i) any security which it
holds as collateral security (as trustee or otherwise) for an
obligation which is not in default as defined in class (B) above,
or (ii) any security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or (iii)
any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar
representative capacity.
44
Except as provided in the immediately preceding paragraph,
the word "security" or "securities" as used in this Indenture
shall mean any note, stock, treasury stock, bond, debentures,
evidence of indebtedness, certificate of interest or
participation in any profit sharing agreement collateral-trust
certificate, pre-organization certificate or subscription,
transferable share, investment contract, voting-trust
certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas or other mineral rights, or, in
general, any interest or instrument commonly known as a
"security" or any certificate of interest or participation in,
temporary or interim certificate for, receipt for, guarantee of,
or warrant or right to subscribe to or purchase, any of the
foregoing.
(d) For the purpose of this Section 8.08:
(1) The term "underwriter" when used with reference to
the Corporation shall mean every person who, within three
years prior to the time as of which the determination is
made, has purchased from the Corporation with a view to, or
has offered or sold for the Corporation in connection with,
the distribution of any security of the Corporation
outstanding at such time, or has participated or has had a
direct or indirect participation in any such undertaking, or
has participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of
the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions
with respect to any organization whether incorporated or
unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization, or a
government or political subdivision thereof. As used in
this paragraph, the term "trust" shall include only a trust
where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
45
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in
the direction or management of the affairs of a person, or
any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or
agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of
the affairs of a person.
(5) The term "Corporation" shall mean any obligor upon
the Securities.
(6) The term "executive officer" shall mean the chief
executive officer, vice chairman, president, every vice
president, every trust officer, the cashier, the secretary,
and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but
shall not include the chairman of the board of directors.
The percentages of voting securities and other securities
specified in this Section 8.08 shall be calculated in accordance
with the following provisions:
(A) A specified percentage of the voting securities of the
Trustee, the Corporation or any other person referred to in this
Section 8.08 (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities
of such person as entities the holder or holders thereof to cast
such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the
affairs of such person.
(B) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital shares,
and the number of units if relating to any other kind of
security.
46
(D) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall
not be deemed outstanding within the meaning of this definition:
(i) Securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) Securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities
is not in default as to principal or interest or otherwise;
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as
to principal or interest or otherwise;
(iv) Securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an issuer shall
be deemed outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
provided, however, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such
series different classes, and provided, further, that, in the
case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed
sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
SECTION 8.09. Eligibility of Trustee. The Trustee hereunder
shall at all times be a corporation organized and doing business
under the laws of the United States or any State or Territory
thereof or of the District of Columbia authorized under such laws
to exercise corporate trust powers, having a combined capital and
surplus of at least five 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
47
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 8.09, the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.09, the Trustee shall resign
immediately in the manner and with the effect specified in
Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The
Trustee may at any time resign with respect to the Securities of
one or more series by giving written notice of such resignation
to the Corporation and by mailing notice thereof to the holders
of Securities of such series at their addresses as they shall
appear on the registry books of the Corporation. Upon receiving
such notice of resignation, the Corporation shall promptly
appoint a successor trustee or trustees with respect to the
Securities 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 each successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within sixty
days after the mailing of such notice of resignation to the
Securityholders of such series, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities of such series for at
least six months may, subject to the provisions of Section 7.09,
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 subsection (a) of Section 8.08 after written
request therefor by the Corporation or by any Securityholder
who has been a bona fide holder of a Security or Securities
for at least six months, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.09 and shall
48
fail to resign after written request therefor by the
Corporation or by any such Securityholder, 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 Corporation may remove the Trustee
with respect to all Securities and appoint a successor trustee or
trustees 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 each
successor trustee, or, subject to the provisions of Section 7.09,
any Securityholder who has been a bona fide holder of a Security
or Securities 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 or trustees. Such court may
thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee or
trustees.
(c) The holders of a majority in aggregate principal amount
of the Securities of any series at the time outstanding may at
any time remove the Trustee with respect to such series and
nominate a successor trustee.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the
provisions of this Section 8.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in
Section 8.11.
SECTION 8.11. Acceptance by Successor Trustee. In the case
of the appointment hereunder of a successor trustee with respect
to all Securities, any successor trustee so appointed as provided
in Section 8.10 shall execute, acknowledge and deliver to the
Corporation and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
49
powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein:
nevertheless, on the written request of the Corporation or of the
successor trustee, the trustee ceasing to act shall, upon payment
of any amounts then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such
successor trustee a the rights and powers of the trustee so
ceasing to act. In case of the appointment hereunder of a
successor trustee with respect to the Securities of one or more
(but not all) series, the Corporation, the predecessor trustee
and each successor trustee with respect to the Securities of one
or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept
such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to vest in, or confirm to, each
successor trustee all the rights, powers, duties and obligations
of the predecessor trustee with respect to the Securities of that
or those series to which the appointment of such successor
trustee relates, (2) if the predecessor trustee is not retiring
with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the
rights, powers, duties and obligations of the predecessor trustee
with respect to the Securities of that or those series as to
which the predecessor trustee is not retiring shall continue to
be vested in the predecessor trustee, and (3) shall add to or
change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one trustee, it being understood
that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder
administered by any other such trustee; and upon the execution
and delivery of such supplemental indenture the resignation or
removal of the predecessor trustee shall become effective to the
extent provided therein and each such successor trustee, without
any further act, deed or conveyance, shall become vested with all
the rights, powers, duties and obligations of the predecessor
trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but,
nevertheless, on the written request of the Corporation or any
successor trustee, such predecessor trustee shall, upon payment
of any amounts then due to it pursuant to Section 8.06 hereof,
duly assign, transfer and deliver to such successor trustee all
property and money held by such predecessor trustee hereunder
50
with respect to the Securities of that or those series to which
the appointment of such successor trustee relates. Upon request
of any such successor trustee, the Corporation shall execute any
and all instruments in writing in order more fully and certainly
to vest in and confirm to such successor trustee all such rights,
powers and trusts referred to in the two preceding sentences.
Any trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the
provisions of Section 8.06.
No successor trustee shall accept appointment as provided in
this Section 8.11 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of
Section 8.08 and eligible under the provisions of Section 8.09.
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.11, the Corporation shall mail notice
of the succession of such trustee hereunder to all holders of
Securities of the series affected as the names and addresses of
such holders appear on the registry books of the Corporation. If
the Corporation fails to mail such notice in the prescribed
manner within 30 days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice
to be mailed at the expense of the Corporation.
SECTION 8.12. Succession by Merger, etc. Any corporation
into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be
a party or any corporation succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or
filing of any paper or any further act on the part of any of the
parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such
Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name
of any predecessor hereunder or in the name of the successor
51
trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall
have; provided, however, that the right to adopt the certificate
of authentication of any predecessor Trustee or authenticate
Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or
consolidation.
SECTION 8.13. Limitation on Rights of Trustee as a Creditor.
(a) Subject to the provisions of subsection (b) of this Section
8.13, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Corporation
or of any other obligor on the Securities within four months
prior to a default as defined in subsection (c) of this Section
8.13. or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold
in a special account for the benefit of the Trustee individually,
the holders of the Securities with respect to which the Trustee
is acting as such, and the holders of other indenture securities
(as defined in paragraph (2) of subsection (c) of this Section
8.13)
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal (or premium, if any) or interest,
effected after the beginning of such four-month period and
valid as against the Corporation and its other creditors,
except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of
this subsection, or from the exercise of any right of set-
off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Corporation upon
the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such four-month period, or an amount equal
to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Corporation
and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee
52
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Corporation) who is liable thereon, and (ii) the proceeds of
the bona fide sale of any such claim by the Trustee to a
third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed
against the Corporation in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal
Bankruptcy Code or applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such four-month
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such four-month period and
such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in subsection (c) of
this Section 8.13, would occur within four months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in such
paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such four-month period for
property held as security at the time of such substitution shall,
to the extent of the fair value of the property released, have
the same status as the property released and, to the extent that
any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying
or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such
preexisting claim.
53
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds there of
shall be apportioned between the Trustee, the Securityholders and
the holders of other indenture securities in such manner that the
Trustee, the Securityholders and the holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Corporation in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Corporation of
the funds and property in such a special account and before
crediting to the respective claims of the Trustee, the
Securityholders, and the holders of other indenture securities,
dividends on claims filed against the Corporation in bankruptcy
or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Code or applicable State law, but after
crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other
than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect
to any claim, the term "dividends" shall include any distribution
with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy
Code or applicable State law, whether such distribution is made
in cash, securities, or other property, but shall not include any
such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership, or
proceeding for reorganization is pending shall have jurisdiction
(i) to apportion between the Trustee, the Securityholders, and
the holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of
the distribution to be made to the Trustee, the Securityholders
and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary
to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such
claim or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as a
mathematical formula.
54
Any Trustee who has resigned or been removed after the
beginning of such four-month period shall be subject to the
provisions of this subsection (a) as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such four-month period, it
shall be subject to the provisions of this subsection (a) if and
only if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to account, if
such Trustee had continued as trustee, occurred after the
beginning of such four-month period; and
(ii) such receipt of property or reduction of claim
occurred within four months after such resignation or
removal.
(b) There shall be excluded from the operation of
subsection (a) of this Section 8.13 a creditor relationship
arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by
the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction, or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture
or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in
Section 6.04 with respect to reports pursuant to subsections
(a) and (b) thereof, respectively;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
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result of goods or securities sold in a cash transaction as
defined in subsection (c) of this Section 8.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Corporation; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of self-
liquidating paper as defined in subsection (c) of this
Section 8.13.
(c) As used in this Section 8.13:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest upon any of
the Securities or upon the other indenture securities when
and as such principal or interest becomes due and payable:
(2) the term "other indenture securities" shall mean
securities upon which the Corporation is an obligor (as
defined in the Trust Indenture Act of 1939) outstanding
under any other indenture (A) under which the Trustee is
also trustee, (B) which contains provisions substantially
similar to the provisions of subsection (a) of this Section
8.13, and (C) under which a default exists at the time of
the apportionment of the funds and property held in said
special account;
(3) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any
draft, xxxx of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Corporation for
the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
56
sale of the goods, wares or merchandise previously
constituting the security; provided that the security is
received by the Trustee simultaneously with the creation of
the creditor relationship with the Corporation arising from
the making, drawing, negotiating or incurring of the draft,
xxxx of exchange, acceptance or obligation; and
(5) the term "Corporation" shall mean any obligor upon
the Securities.
ARTICLE NINE
CONCERNING THE SECURITYHOLDERS
SECTION 9.01. Action by Securityholders. Whenever in this
Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Securities of any
or all 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 specified percentage
have joined therein may be evidenced, subject to Section 10.07,
(a) by any instrument or any number of instruments of similar
tenor executed by holders of such Securities in person or by
agent or proxy appointed in writing, or (b) by the record of the
holders of such Securities voting in favor thereof at any meeting
of holders of such Securities duly called and held in accordance
with the provisions of Article Ten, or (c) by a combination of
such instrument or instruments and any such record of such a
meeting of holders of such Securities.
SECTION 9.02. Proof of Execution by Securityholders.
Subject to the provisions of Sections 8.01, 8.02 and 10.05, proof
of the execution of any instruments by a Securityholder or his
agent or proxy shall be sufficient if made in accordance with
such reasonable rules and regulations as may be prescribed by the
Trustee or in such manner as shall be satisfactory to the
Trustee. The ownership of Securities shall be proved by the
registry books of the Corporation or by a certificate of the
Security registrar.
The record of any Securityholders' meeting shall be proved
in the manner provided in Section 10.06.
SECTION 9.03. Who Are Deemed Absolute Owners. The
Corporation, the Trustee, any paying agent and any Security
57
registrar may deem the person in whose name any Securities shall
be registered upon the registry books of the Corporation to be,
and may treat such person as, the absolute owner of such Security
(whether or not such Security shall be overdue) for the purpose
of receiving payment of or on account of the principal of (and
premium, if any) and interest, if any, on such Security and for
all other purposes; and neither the Corporation nor the Trustee
nor any paying agent nor any Security registrar shall be affected
by any notice to the contrary. All such payments so made to any
holder for the time being, or upon his order shall be valid, and,
to the extent of the sum or sums so paid, effective to satisfy
and discharge the liability for moneys payable upon any such
Security.
No holder of any beneficial interest in any global Security
held on its behalf by a Depositary shall have any rights under
this Indenture with respect to such global Security, and such
Depositary may be treated by the Corporation, the Trustee, any
paying agent and any agent of the Corporation or the Trustee as
the owner of such global Security for all purposes whatsoever.
None of the Corporation, the Trustee, any paying agent or any
Security registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account
of beneficial ownership interests of a global Security or for
maintaining, supervising or reviewing any records related to such
beneficial ownership interests.
SECTION 9.04. Corporation-Owned Securities Disregarded. In
determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction,
consent or waiver under this Indenture, Securities which are
owned by the Corporation or any other obligor on the Securities
or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the
Corporation or any other obligor on the Securities shall be
disregarded and deemed not to be outstanding for the purpose of
any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which the
Trustee knows are so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 9.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not a
person directly or indirectly controlling or controlled by or
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under direct or indirect common control with the Corporation or
any such other obligor. In the 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 9.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 9.01, of the taking of any action
by the holders of the percentage in aggregate principal amount of
the Securities specified in this Indenture in connection with
such action, any holder of a Security the serial number of which
is shown by the evidence to be included in the Securities the
holders of which have consented to such action may, by filing
written notice with the Trustee at its principal office and upon
proof of holding as provided in Section 9.02, revoke such action
so far as concerns such Security. Except as aforesaid any such
action taken by the holder of any Security shall be conclusive
and binding upon such holder and upon all future holders and
owners of such Security and of any Security issued in exchange or
substitution therefore, irrespective of whether or not any
notation in regard thereto is made upon such Security.
ARTICLE TEN
SECURITYHOLDERS' MEETINGS
SECTION 10.01. Purposes of Meetings. A meeting of holders
of Securities of one or more series may be called at any time and
from time to time pursuant to the provisions of this Article Ten
for any of the following purposes:
(1) to give any notice to the Corporation or to the
Trustee, or to give any directions to the Trustee, or to
consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be
taken by such Securityholders pursuant to any of the
provisions of Article Seven;
(2) to remove the Trustee and nominate a successor
trustee pursuant to the provisions of Article Eight;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 11.02; or
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(4) to take any other action authorized to be taken by
or on behalf of the holders of any specified aggregate
principal amount of the Securities of one or more series
under any other provision of this Indenture or under
applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may
at any time call a meeting of holders of Securities of one or
more series to take any action specified in Section 10.01, to be
held at such time and at such place in the City of Baltimore,
State of Maryland, as the Trustee shall determine. Notice of
every such meeting of the Securityholders, setting forth the time
and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to holders
of Securities of each series affected at their addresses as they
shall appear on the registry books of the Corporation. Such
notice shall be mailed not less than 20 nor more than 90 days
prior to the date fixed for the meeting.
SECTION 10.03. Call of Meetings by Corporation or
Securityholders. In case at any time the Corporation, pursuant
to a Board Resolution, or the holders of at least ten percent in
aggregate principal amount of the Securities of one or more
series then outstanding, shall have requested the Trustee to call
a meeting of Securityholders of Securities of such series, by
written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 20 days after
receipt of such request, then the Corporation or such
Securityholders may determine the time and the place in said City
of Baltimore for such meeting and may call such meeting to take
any action authorized in Section 10.01, by mailing notice thereof
as provided in Section 10.02.
SECTION 10.04. Qualifications for Voting. To be entitled to
vote at any meeting of holders of Securities of any series a
person shall (a) be a holder of one or more Securities of such
series or (b) be a person appointed by an instrument in writing
as proxy by a holder of one or more Securities of such series.
The only persons who shall be entitled to be present or to speak
at any meeting of Securityholders shall be the persons entitled
to vote at such meeting and their counsel and any representatives
of the Trustee and its counsel and any representatives of the
Corporation and its counsel.
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SECTION 10.05. Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting
of Securityholders, in regard to proof of the holding of
Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct
of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Corporation or by the Securityholders as
provided in Section 10.03, in which case the Corporation or the
Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by
majority vote of the meeting.
Subject to the provisions of Section 9.04, at any meeting
each Securityholder or proxy shall be entitled to one vote for
each $1,000 principal amount (in the case of Discounted
Securities, such principal amount to be determined as provided in
the definition of the term "outstanding") of Securities held or
represented by such Securityholder; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called
pursuant to the provisions of Section 10.02 or 10.03 may be
adjourned from time to time by a majority of those present.
whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.
SECTION 10.06. Voting. The vote upon any resolution
submitted to any meeting of Securityholders shall be by written
ballots on which shall be subscribed the signatures of the
holders of Securities or of their representatives by proxy and
the principal amount of the Securities held or represented by
them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with
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the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Securityholders
shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice
was mailed as provided in Section 10.02. The record shall show
the principal amount of the Securities voting in favor of or
against any resolution. The record shall be signed and verified
by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the
Corporation and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 10.07. Written Consent in Lieu of Meeting. The
written authorization or consent of the requisite percentage of
Securityholders herein provided, entitled to vote at any such
meeting, evidenced as provided in Article Nine and filed with the
Trustee shall be effective in lieu of a meeting of
Securityholders, with respect to any matter provided for in this
Article Ten.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Without Consent of
Securityholders. The Corporation, when authorized by a
resolution of the Board of Directors, and the Trustee may from
time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following
purposes:
(a) to evidence the succession of another corporation
to the Corporation, or successive successions, and the
assumption by the successor corporation of the covenants,
agreements and obligations of the Corporation pursuant to
Article Twelve hereof;
(b) to add to the covenants of the Corporation such
further covenants, restrictions or conditions for the
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protection of the holders of the Securities as the Board of
Directors and the Trustee shall consider to be for the
protection of the holders of Securities, and to make the
occurrence, or the occurrence and continuance, of a default
in any of such additional covenants, restrictions or
conditions a default or an Event of Default 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
or condition 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;
(c) to provide for the issuance under this Indenture
of Securities in coupon form (including Securities
registrable as to principal only) and to provide for
exchangeability of such Securities with the Securities of
the same series issued hereunder in fully registered form
and to make all appropriate changes for such purpose;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture or to make such other provisions in regard to
matters or questions arising under this Indenture which
shall not adversely affect the interest of the holders of
the Securities;
(e) to add to the conditions, limitations and
restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of Securities, as herein
set forth, other conditions, limitations and restrictions
thereafter to be observed; or
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the Trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 8.11 hereof.
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The Trustee is hereby authorized to join with the
Corporation in the execution of any such supplemental indenture,
to make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer
and assignment of any property thereunder, but the Trustee shall
not be obligated to, but may in its discretion, 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 11.01 may be executed by the Corporation and the
Trustee without the consent of the holders of any of the
Securities at the time outstanding, notwithstanding any of the
provisions of Section 11.02.
SECTION 11.02. Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in
Section 9.01) of the holders of not less than 66 2/3% in
aggregate principal amount of the Securities of all series
affected by such supplemental indenture (voting as one class) at
the time outstanding, the Corporation, when authorized by a
resolution of the Board of Directors, and the Trustee may from
time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the holders of the
Securities of each such series; provided, however, that no such
supplemental indenture shall extend the fixed maturity of any
Security, or reduce the rate or change the method to be used in
establishing the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof, or reduce any
premium payable upon the redemption thereof, or reduce the amount
of the principal of a Discounted Security that would be due and
payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 7.01, or make the principal thereof
or premium or interest thereon payable in any coin or currency
other than that provided in such Securities, without the consent
of the holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental indenture, without
the consent of the holders of all Securities of the series
affected then outstanding. A supplemental indenture which
changes or eliminates any covenant or other provision of this
64
Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which
modifies the rights of the holders of Securities of such series
with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the holders of
Securities of any other series.
Upon the request of the Corporation, 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 Securityholders as aforesaid, the Trustee shall
join with the Corporation 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
Securityholders under this Section 11.02 to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
SECTION 11.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indenture. Any supplemental indenture executed
pursuant to the provisions of this Article Eleven shall comply
with the Trust Indenture Act of 1939, as then in effect. Upon
the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Corporation
and the holders of Securities of the series affected 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 11.04. Notation on Securities. Securities
authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article
Eleven may bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the
65
Corporation shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any
such supplemental indenture, may be prepared and executed by the
Corporation, authenticated by the Trustee and delivered in
exchange for the Securities then outstanding.
SECTION 11.05. Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee. The Trustee, subject to the
provisions of Sections 8.01 and 8.02, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with
the requirements of this Article Eleven.
ARTICLE TWELVE
CONSOLIDATION, MERGER AND SALE
SECTION 12.01. Corporation May Consolidate, etc., on Certain
Terms. Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the
Corporation with or into any other corporation or corporations
(whether or not affiliated with the Corporation), or successive
consolidations or mergers in which the Corporation or its
successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of all or substantially all the
property of the Corporation to any other corporation (whether or
not affiliated with the Corporation) authorized to acquire and
operate the same; provided, however, and the Corporation hereby
covenants and agrees, that upon any such consolidation, merger,
sale or conveyance, the due and punctual payment of the principal
of (and premium, if any) and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Corporation, shall be
expressly assumed by supplemental indenture satisfactory in form
to the Trustee, executed and delivered to the Trustee, by the
corporation (if other than the Corporation) formed by such
consolidation, or into which the Corporation shall have been
merged, or by the corporation which shall have acquired such
property.
SECTION 12.02. Successor Corporation to Be Substituted. In
case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory
66
in form to the Trustee, of the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all
of the Securities and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by
the Corporation, such successor corporation shall succeed to and
be substituted for the Corporation, with the same effect as if it
had been named herein as the Corporation. Such successor
corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of Constellation Energy
Corporation any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Corporation and
delivered to the Trustee; and, upon the order of such successor
corporation instead of the Corporation and subject to all the
terms, conditions and limitations in this Indenture prescribed,
the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the
officers of the Corporation to the Trustee for authentication,
and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities of a particular series so issued
shall in all respects have the same legal rank and benefit under
this Indenture as the Securities of such series theretofore or
thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of
the execution hereof.
Nothing contained in this Indenture or in any of the
Securities shall prevent the Corporation from merging into itself
any other corporation (whether or not affiliated with the
Corporation) or acquiring by purchase or otherwise all or any
part of the property of any other corporation (whether or not
affiliated with the Corporation), provided that, immediately
after such merger or acquisition, the Corporation shall not be in
default in the performance or observance of any of the terms,
covenants and conditions of this Indenture to be kept or
performed by it.
SECTION 12.03. Opinion of Counsel to Be Given Trustee. The
Trustee, subject to Sections 8.01 and 8.02, may receive an
Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale or conveyance and any such assumption
complies with the provisions of this Article.
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ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture. When (a) the
Corporation shall deliver to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities
which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 3.05) and not
theretofore cancelled, or (b) all the Securities not theretofore
delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable
within one year and the Corporation shall deposit with the
Trustee or any paying agent, in trust, funds sufficient to pay at
maturity all of the Securities (other than any Securities which
shall have been mutilated, destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 3.05) not
theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest, if any, due or to
become due to such date of maturity, but excluding, however, the
amount of any moneys for the payment of the principal of (and
premium, if any) or interest, if any, on the Securities (1)
theretofore deposited with the Trustee or any paying agent and
repaid by the Trustee or any paying agent to the Corporation in
accordance with the provisions of Section 13.04, or (2) paid to
any State or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the
Corporation shall also pay or cause to be paid all other sums
payable hereunder by the Corporation, then this Indenture shall
cease to be of further effect, and the Trustee, on demand of the
Corporation accompanied by an Officers' Certificate and an
Opinion of Counsel as required by Section 16.05 and at the cost
and expense of the Corporation, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
The Corporation, however, hereby agrees to reimburse the Trustee
for any costs or expenses thereafter reasonably and properly
incurred by the Trustee in connection with this Indenture or the
Securities.
SECTION 13.02. Deposited Moneys to Be Held in Trust by
Trustee. All moneys deposited with the Trustee or any paying
agent pursuant to Section 13.01 shall be held in trust and
applied by it to the payment, either directly or through any
paying agent (including the Corporation if acting as its own
paying agent), to the holders of the particular Securities for
the payment of which such moneys have been deposited with the
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Trustee, or any paying agent, of all sums due and to become due
thereon for principal (and premium, if any) and interest.
SECTION 13.03. Paying Agent to Repay Moneys Held. Upon the
satisfaction and discharge of this Indenture all moneys then held
by any paying agent of the Securities (other than the Trustee)
shall, upon demand of the Corporation, be repaid to it or paid to
the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such moneys.
SECTION 13.04. Return of Unclaimed Moneys. Any moneys
deposited with or paid to the Trustee for payment of the
principal of (or premium, if any) or interest on Securities of
any series and not applied but remaining unclaimed by the holders
of such Securities for two years after the date upon which the
principal of (or premium, if any) or interest on such Securities,
as the cam may be, shall have become due and payable, shall on
demand of the Corporation be repaid to the Corporation by the
Trustee; and the holder of any of such Securities shall
thereafter look only to the Corporation for any payment which
such holder may be entitled to collect. Any reference to the
Trustee in this Section 13.04 shall be deemed to also include any
entity designated by the Corporation with the consent of the
Trustee to act as its agent for the performance of all or any of
its duties under this Section.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Securities Solely Corporate
Obligations. No recourse for the payment of the principal of (or
premium, if any) or interest on any Security, or for any claim
based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the
Corporation in this Indenture or in any supplemental indenture,
or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a
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condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.01. General. Any redemption of Securities of any
series under any sinking fund as required or permitted by the
terms of any Securities duly issued pursuant to this Indenture
shall be made in accordance with such terms and this Article
Fifteen.
The Securities of any series may be subject to redemption
pursuant to a sinking fund, in whole or in part, as set forth in
the form of Security for such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as
a "mandatory sinking fund payment," and any payment in excess of
such minimum amount provided for by the terms of Securities of
any series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 15.02 hereof. Each
sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of
Securities of such series.
SECTION 15.02. Satisfaction of Sinking Fund Payments with
Securities. The Corporation (1) may deliver to the Trustee for
cancellation outstanding Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the
election of the Corporation pursuant to the terms of such
Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
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SECTION 15.03. Redemption of Securities for Sinking Fund.
Not less than sixty days prior to each sinking fund payment date
for any series of Securities, the Corporation 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
by payment of cash and the portion thereof, if any, which is to
be satisfied by delivering and crediting Securities of that
series as permitted by Section 15.02 and will also deliver to the
Trustee any Securities to be so delivered if not theretofore
delivered. The Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 4.03 and cause notice of the redemption
thereof to be given in the manner provided in Section 4.04. Such
notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections
4.05 and 4.06.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01. Provisions Binding on Corporation's
Successors. All the covenants, stipulations, promises and
agreements in this Indenture contained by the Corporation shall
bind its successors and assigns whether so expressed or not.
SECTION 16.02. Official Acts by Successor Corporation. 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 Corporation shall and may be done and performed
with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful
sole successor of the Corporation.
SECTION 16.03. Addresses for Notices, etc. 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 Securities on the Corporation may be given or served by being
deposited postage prepaid in a post office letter box addressed
(until another address is filed by the Corporation with the
Trustee) to Constellation Energy Corporation, X.X. Xxx 0000,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Treasurer. Deliveries by
hand may be made by being brought to the Corporation at, 00 X.
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention:
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Treasurer. Any notice, direction, request or demand by any
Securityholder 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 Principal Office of the Trustee, addressed
to the attention of its Corporate Trust Department.
SECTION 16.04. Maryland Contract. This Indenture and each
Security shall be deemed to be a contract made under the laws of
the State of Maryland, and for all purposes shall be governed by
and construed in accordance with the laws of said State.
SECTION 16.05. Evidence of Compliance with Conditions
Precedent. Upon any application or demand by the Corporation to
the Trustee to take any action under any of the provisions of
this Indenture, the Corporation shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture 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 opinion 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 16.06. Legal Holidays. In any case where the date
of maturity of interest on or premium, if any on, or principal of
the Securities is not a business day, then payment of such
interest on or premium, if any on, or principal of the Securities
need not be made on such date but may be made on the next
succeeding business day with the same force and effect as if made
on the date of maturity and no interest shall accrue for the
period from and after such date of maturity.
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SECTION 16.07. Trust Indenture Act to Control. If and to
the extent that any provision of this Indenture limits, qualifies
or conflicts with another provision included in this Indenture
which is required to be included in this Indenture by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939, such required provision shall control.
SECTION 16.08. Table of Contents, Headings, etc. The table
of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions
hereof.
SECTION 16.09. Execution in Counterparts. This Indenture
may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together
constitute but one and the same instrument.
The Bank of New York, as Trustee, hereby accepts the trusts
in this Indenture declared and provided, upon the terms and
conditions herein above set forth.
IN WITNESS WHEREOF, Constellation Energy Corporation has
caused this Indenture to be signed in its corporate name and
acknowledged by its Chairman of the Board, its Chief Executive
Officer, Vice Chairman, its President or one of its Vice
Presidents and The Bank of New York, Trustee, has caused this
Indenture to be signed and acknowledged by one of its Vice
Presidents or Assistant Vice Presidents, as of the day and year
first written above.
CONSTELLATION ENERGY CORPORATION
By: /s/ Xxxxx X. Xxxxx [SEAL]
Xxxxx X. Xxxxx
Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxxxx [SEAL]
Xxxxxx Xxxxxxx
Assistant Vice President
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