EXHIBIT 4.11(a)
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UNITED CITIES GAS COMPANY
to
Bank of America Illinois
INDENTURE
Dated as of November 15, 1995
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TABLE OF CONTENTS
NOTE: This table of contents shall not, for any purpose, be deemed to
be part of the Indenture.
SECTION HEADING PAGE
Parties............................................................................................ 1
Recital of the Company............................................................................. 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION.......................................................... 1
Section 101. Definitions.............................................................. 1
Act ......................................................................... 2
Affiliate......................................................................... 2
Authenticating Agent.............................................................. 2
Board of Directors................................................................ 2
Board Resolution.................................................................. 2
Business Day...................................................................... 2
Commission........................................................................ 2
Company ......................................................................... 2
Company Request or Company Order.................................................. 3
Corporate Trust Office............................................................ 3
Corporation....................................................................... 3
Defaulted Interest................................................................ 3
Default ......................................................................... 3
Depositary........................................................................ 3
Discount Security................................................................. 3
Dollar or $....................................................................... 3
Eligible Obligations.............................................................. 3
Event of Default.................................................................. 3
First Mortgage Bonds.............................................................. 4
Government Obligations............................................................ 4
Holder ......................................................................... 4
Indenture......................................................................... 4
interest ......................................................................... 4
Interest Payment Date............................................................. 4
Maturity ......................................................................... 4
Officers' Certificate............................................................. 4
Opinion of Counsel................................................................ 5
Outstanding....................................................................... 5
Paying Agent...................................................................... 6
Periodic Offering................................................................. 6
Person ......................................................................... 0
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Xxxxx of Payment.................................................................. 6
Predecessor Security.............................................................. 6
Redemption Date................................................................... 6
Redemption Price.................................................................. 6
Regular Record Date............................................................... 7
Required Currency................................................................. 7
Responsible Officer............................................................... 7
Securities........................................................................ 7
Security Register; Security Registrar............................................. 7
Special Record Date............................................................... 7
Stated Maturity................................................................... 7
Tranche ......................................................................... 7
Trustee ......................................................................... 7
Trust Indenture Act............................................................... 7
United States..................................................................... 7
Section 102. Compliance Certificates and Opinions.................................. 8
Section 103. Form of Documents Delivered to Trustee................................ 8
Section 104. Acts of Holders....................................................... 9
Section 105. Notices, Etc. to Trustee and Company.................................. 10
Section 106. Notice to Holders of Securities; Waiver............................... 10
Section 107. Conflict with Trust Indenture Act..................................... 11
Section 108. Effect of Headings and Table of Contents.............................. 11
Section 109. Successors and Assigns................................................ 11
Section 110. Separability Clause................................................... 11
Section 111. Benefits of Indenture................................................. 11
Section 112. Governing Law......................................................... 11
Section 113. Legal Holidays........................................................ 11
ARTICLE TWO SECURITY FORMS........................................................ 12
Section 201. Forms Generally....................................................... 12
Section 202. Form of Trustee's Certificate of Authentication....................... 12
Section 203. Securities in Global Form............................................. 13
ARTICLE THREE THE SECURITIES........................................................ 13
Section 301. Amount Unlimited; Issuable in Series.................................. 13
Section 302. Denominations......................................................... 16
Section 303. Execution, Authentication, Delivery and Dating........................ 16
Section 304. Temporary Securities.................................................. 19
Section 305. Registration; Registration of Transfer and Exchange................... 20
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...................... 22
Section 307. Payment of Interest................................................... 23
Section 308. Persons Deemed Owners................................................. 24
Section 309. Cancellation.......................................................... 25
Section 310. Computation of Interest............................................... 25
Section 311. Payment to Be in Proper Currency...................................... 25
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Section 312. CUSIP Numbers......................................................... 25
ARTICLE FOUR REDEMPTION OF SECURITIES.............................................. 26
Section 401. Applicability of Article.............................................. 26
Section 402. Election to Redeem; Notice to Trustee................................. 26
Section 403. Selection of Securities to Be Redeemed................................ 26
Section 404. Notice of Redemption.................................................. 26
Section 405. Securities Payable on Redemption Date................................. 27
Section 406. Securities Redeemed in Part........................................... 28
ARTICLE FIVE SINKING FUNDS......................................................... 28
Section 501. Applicability of Article.............................................. 28
Section 502. Satisfaction of Sinking Fund Payments with Securities................. 28
Section 503. Redemption of Securities for Sinking Fund............................. 29
ARTICLE SIX COVENANTS .......................................................... 29
Section 601. Payment of Principal, Premium and Interest............................ 29
Section 602. Maintenance of Office or Agency....................................... 29
Section 603. Money for Securities Payments to Be Held in Trust..................... 30
Section 604. Corporate Existence................................................... 31
Section 605. Maintenance of Properties............................................. 31
Section 606. Statement as to Compliance; Notice of Default......................... 32
Section 607. Waiver of Certain Covenants........................................... 32
ARTICLE SEVEN SATISFACTION AND DISCHARGE............................................ 33
Section 701. Satisfaction and Discharge of Securities.............................. 33
Section 702. Satisfaction and Discharge of Indenture............................... 34
Section 703. Application of Trust Money............................................ 35
ARTICLE EIGHT EVENTS OF DEFAULT; REMEDIES........................................... 36
Section 801. Events of Default..................................................... 36
Section 802. Acceleration of Maturity; Rescission and Annulment.................... 37
Section 803. Collection of Indebtedness and Suits for Enforcement by
Trustee............................................................... 38
Section 804. Trustee May File Proofs of Claim...................................... 39
Section 805. Trustee May Enforce Claims Without Possession of
Securities............................................................ 40
Section 806. Application of Money Collected........................................ 40
Section 807. Limitation on Suits................................................... 40
Section 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................................. 41
Section 809. Restoration of Rights and Remedies.................................... 41
Section 810. Rights and Remedies Cumulative........................................ 42
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Section 811. Delay or Omission Not Waiver.......................................... 42
Section 812. Control by Holders of Securities...................................... 42
Section 813. Waiver of Past Defaults............................................... 42
Section 814. Undertaking for Costs................................................. 43
Section 815. Waiver of Stay or Extension Laws...................................... 43
ARTICLE NINE THE TRUSTEE .......................................................... 43
Section 901. Certain Duties and Responsibilities................................... 43
Section 902. Notice of Defaults.................................................... 44
Section 903. Certain Rights of Trustee............................................. 45
Section 904. Not Responsible for Recitals or Issuance of Securities................ 46
Section 905. May Hold Securities................................................... 46
Section 906. Money Held in Trust................................................... 46
Section 907. Compensation and Reimbursement........................................ 46
Section 908. Disqualification; Conflicting Interests............................... 47
Section 909. Corporate Trustee Required; Eligibility............................... 48
Section 910. Resignation and Removal; Appointment of Successor..................... 48
Section 911. Acceptance of Appointment by Successor................................ 50
Section 912. Merger, Conversion, Consolidation or Succession to
Business.............................................................. 51
Section 913. Preferential Collection of Claims Against Company..................... 51
Section 914. Appointment of Authenticating Agent................................... 55
Section 915. Trustee's Application for Instructions from the Company............... 56
ARTICLE TEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY............................................................... 57
Section 1001. Company to Furnish Trustee Names and Addresses of
Holders............................................................... 57
Section 1002. Preservation of Information; Communications to Holders................ 57
Section 1003. Reports by Trustee.................................................... 58
Section 1004. Reports by Company.................................................... 60
ARTICLE ELEVEN CONSOLIDATION, MERGER, CONVEYANCE TRANSFER
OR LEASE..............................................................
Section 1101. Company May Consolidate, Etc., Only on Certain Terms.................. 60
Section 1102. Successor Corporation Substituted..................................... 61
ARTICLE TWELVE SUPPLEMENTAL INDENTURES............................................... 61
Section 1201. Supplemental Indentures Without Consent of Holders.................... 61
Section 1202. Supplemental Indentures with Consent of Holders....................... 63
Section 1203. Execution of Supplemental Indentures.................................. 64
Section 1204. Effect of Supplemental Indentures..................................... 65
Section 1205. Conformity with Trust Indenture Act................................... 65
Section 1206. Reference in Securities to Supplemental Indentures.................... 65
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Section 1207. Modification Without Supplemental Indenture........................... 65
ARTICLE THIRTEEN MEETINGS OF HOLDERS................................................... 66
Section 1301. Purposes for Which Meetings May be Called............................. 66
Section 1302. Call, Notice and Place of Meetings.................................... 66
Section 1303. Persons Entitled to Vote at Meetings.................................. 66
Section 1304. Quorum, Action........................................................ 67
Section 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings................................... 67
Section 1306. Counting Votes and Recording Action of Meeting........................ 68
Section 1307. Action Without Meeting................................................ 69
ARTICLE FOURTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS................................................ 69
Section 1401. Liability Solely Corporate............................................ 69
ARTICLE FIFTEEN CONVERSION OF SECURITIES.............................................. 70
Section 1501. Applicability: Conversion Privilege and Conversion Price............. 70
Section 1502. Exercise of Conversion Privilege...................................... 70
Section 1503. Fractions of Shares................................................... 71
Section 1504. Adjustment of Conversion Price........................................ 71
Section 1505. Notice of Adjustment of Conversion Price.............................. 73
Section 1506. Notice of Certain Corporate Action.................................... 74
Section 1507. Company to Reserve Common Stock....................................... 75
Section 1508. Taxes on Conversions.................................................. 75
Section 1509. Covenant as to Common Stock........................................... 75
Section 1510. Cancellation of Converted Securities.................................. 75
Section 1511. Provisions in Case of Consolidation, Merger or Sale of
Assets................................................................ 75
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INDENTURE, dated as of November 15, 1995, between UNITED CITIES GAS
COMPANY, a corporation duly organized and existing under the laws of the State
of Illinois and the Commonwealth of Virginia (herein called the "Company") ,
having its principal office at 0000 Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxx 00000,
and Bank of America Illinois, an Illinois banking corporation (hereinafter
called the "Trustee"), having its Corporate Trust Office at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided; and all other things
necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted
in the United States of America at the date of such computation; provided,
however, that in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent required,
conform to any order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having jurisdiction over
the Company; and
(d) the words"herein," "hereof' and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Articles Nine and Fifteen, are defined
in such Articles.
"Act" when used with respect to any Holder of a Security, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to act on behalf of the Trustee to authenticate one or more series of
Securities.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to a Place of Payment or any other
particular location specified in the Securities of this Indenture, means any
day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other specified
location are generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as contemplated by
Section 301.
"Commission" means the Securities and Exchange Commission, as from to time
constituted, created under the Securities Exchange Act of 1934, as amended, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
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"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Controller, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration.
"Corporation" means a corporation, association, company, joint stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Default" means, with respect to the Securities of any series, any event
which is, or after notice or the lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
"Depositary" means with respect to the Securities of any series, or any
Tranche thereof, issuable or issued in whole or in part in global form, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series, or any Tranche thereof, shall mean the "Depositary" with respect to
the Securities of that series or Tranche.
"Discount Security" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 802.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Eligible Obligations"' means:
(a) with respect to Securities denominated in United States Dollars
Government Obligations; or
(b) with respect to Securities denominated in a currency other than
United States Dollars or in a composite currency, such other obligations
or instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
"Event of Default" has the meaning specified in Section 801.
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"First Mortgage Bonds" means one or more series of the Company's bonds
issued under the Indenture of Mortgage dated as of July 15, 1959 from the
Company to Bank of America Illinois (successor to Continental Bank, National
Association) and Xxxxxx X. Xxxxxxx (successor to X.X. Xxxxxx), as Trustees, as
amended and supplemented from time to time.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America entitled to the benefit of the full faith and credit thereof, and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in clause
(a) above or in any specific interest or principal payments due in respect
thereof; provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or trust company
subject to Federal or state supervision or examination with a combined
capital and surplus of at least $50,000,000; and provided, further, that
except as may be otherwise required by law, such custodian shall be
obligated to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian in respect
of such obligations or specific payments and shall not be permitted to
make any deduction therefrom.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal become due
and payable as therein or herein provided, whether at the Stated Maturity, by
declaration of acceleration, upon call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with Section
701; and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or all Outstanding Securities of each
such series and each such Tranche, as the case may be, determined without
regard to this clause (x)) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the Trustee knows to be so
owned shall be so disregarded; provided, however, that Securities so owned
which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor;
(y) the principal amount of a Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 802; and
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(z) the principal amount of any Security which is denominated in a
currency other than U.S. Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall be the amount of U.S.
Dollars which could have been purchased by the principal amount (or, in
the case of a Discount Security, the U.S. Dollar equivalent on the date
determined as set forth below of the amount determined as provided in (y)
above) of such currency or composite currency evidenced by such security,
in each such case certified to the Trustee in an Officers' Certificate
based (i) on the average of the mean of the buying and selling spot rates
quoted by three banks which are members of the New York Clearing House
Association selected by the Company in effect at 11:00 A.M. (New York
time) in the City of New York on the fifth Business Day preceding any such
determination or (ii) if on such fifth Business Day it shall not be
possible or practicable to obtain such quotations from such three banks,
on such other quotations or alternative methods of determination which
shall be as consistent as practicable with the method set forth in (i)
above.
"Paying Agent" means any Person, including the Company, authorized by the
Company to pay the principal of, and premium, if any, or interest, if any, on
any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint venture,
trust or unincorporated organization or any government or any political
subdivision, instrumentality or agency thereof.
"Place of Payment" when used with respect to the Securities of any series,
means the place or places, specified as contemplated by Section 301, at which,
subject to Section 602, the principal of and premium, if any, and interest, if
any, on the Securities of such series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
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"Regular Record Date," for the interest payable on any Interest Payment
Date on the Securities of any series, means the date specified for that purpose
as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any securities authenticated and delivered under
this indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Tranche" means a group of Securities which (a) are of the same series and
(b) have identical terms except as to principal amount and/or date of issuance.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include such Person who
is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
as in force at the date as of which this instrument was executed, except as
provided in Section 1205.
"United States" means the United States of America, its territories, its
possessions and other areas subject to its jurisdiction.
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Section 102. Compliance Certificates and Opinions. Except as otherwise
expressly provided in this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture,
the Company shall, if requested by the Trustee, furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, 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 compiled with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been compiled with.
Section 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, election, waiver or other action provided by this
Indenture to be made, given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record of both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 901) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meetings of Holders shall be proved in the manner provided in
Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in clause (y)
of the proviso to the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election waiver or other Act of a Holder shall bind the Holder of any Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) Until such time as written instruments shall have been delivered to
the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of the Holder may be revoked with respect
to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
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(f) Securities of any series, or any Tranche thereof, authenticated and
delivered after any Act of Holders may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any action taken by such
Act of Holders. If the Company shall so determine, new Securities of any series,
or any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to such action may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization. direction, notice, consent, waiver or other Act, the Company may,
at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record dated is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the Outstanding
securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of the record date. If
such a record date is not fixed, such record date shall be the later of 30 days
prior to the first solicitation of such request, demand, authorization,
direction, notice, consent, waiver or other Act or the date of the most recent
list of Holders furnished to the Trustee pursuant to Section 1001 prior to such
solicitation.
Section 105. Notices, Etc. to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided),
if in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Treasurer, at 0000 Xxxxxxxx Xxx,
Xxxxxxxxx, Xxxxxxxxx 00000, or at any other address previously furnished
in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver. Except as otherwise
expressly provided herein, where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given, and shall be deemed
given, to Holders if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at the address of such Holder as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such Notice.
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In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to Holders by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
Section 108. Effect of Headings and Table of Contents. The Article and
Section headings in this Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause. In case any provision in this Indenture
or the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 111. Benefits of indenture. Nothing in this Indenture or the
Securities, express or implied, shall give to any Person, other than the parties
hereto, their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of Illinois.
Section 113. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities other than a provision in Securities of any
series, or any Tranche thereof, or in the Board Resolution or Officers'
Certificate which establishes the terms of such Securities or Tranche, which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal and premium, if any, need not be made at such
Place of Payment on such date, but may be on the next succeeding business Day at
such Place of Payment with the same force and effect as if made
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on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and,
if such payment is made or duly provided for on such Business Day, then no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally. The definitive Securities of each series
shall be in substantially the forms thereof established in Board Resolutions or
Officers' Certificates pursuant to Board Resolutions, or in indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the forms of Securities of any series are
established in a Board Resolution or in an Officers' Certificate pursuant to a
Board Resolution, such Board Resolution and Officers' Certificate, if any, shall
be delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The Securities of each series shall be issuable in registered form without
coupons. The definitive Securities shall be produced in such manner as shall be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
Section 202. Form of Trustees Certificate of Authentication. The Trustee's
certificate of authentication shall be in substantially the form set forth
below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANK OF AMERICA ILLINOIS,
as Trustee
By: ____________________
Authorized Signatory
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Section 203. Securities in Global Form. If Securities of a series, or any
Tranche thereof, are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges or increased to reflect the issuance of
additional Securities. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or Persons,
as shall be specified therein or in the Company Order delivered to the Trustee
pursuant to Section 303.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. The Securities will rank pari passu with all other
unsecured indebtedness of the Company; provided, however, that if designated
pursuant to Section 301(r), a particular series of Securities, or any Tranche
thereof, may be collateralized by the Company's First Mortgage Bonds or other
securities of the Company or other specified Person.
The Securities may be issued in one or more series. Subject to the last
paragraph of this Section, there shall be established in a Board Resolution or
in an Officers' Certificate pursuant to a Board Resolution, or established in
one or more indentures supplemental hereto, prior the issuance of Securities of
any series,
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities
of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Xxxxxxx 000, 000, 000, 000 xx 0000
and, except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(c) whether Securities of such series, or any Tranche thereof, may
be issued in whole or in part in global form and, if so, the identity of
the Depositary for such Securities in global form, and the terms and
conditions, if any, upon which interests in such Securities in global form
may be exchanged, in whole or in part, for the individual Securities
represented thereby;
(d) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
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(e) the date or dates on which the principal of the Securities of
such series is payable;
(f) the rate or rates at which the Securities of such series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal, premium or interest shall bear interest, if
any), or any method or methods by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on Securities on any Interest
Payment Date; and the basis of computation of interest, if other than as
provided in Section 310;
(g) the place or places where (1) the principal of and premium, if
any, and interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, (2) any Securities of such series, or any
Tranche thereof, may be surrendered for registration of transfer, (3)
Securities of such series, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company in respect of
the Securities of such series, or any Tranche thereof, and this Indenture
may be served;
(h) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part, at the option
of the Company;
(i) the obligation, if any, of the Company to redeem or purchase the
Securities of such series, or any Tranche thereof, pursuant to any sinking
fund or analogous provisions or at the option of the Company or a Holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(j) the denominations in which Securities, if any, of such series,
or any Tranche thereof shall be issuable if other than denominations of
$1,000 and any integral multiple thereof;
(k) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made;
(l) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest, if
any, on the Securities of such series, or any Tranche thereof, shall be
payable (if other than the currency of the United States);
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(m) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company or a Holder thereof,
in securities or other property, the type and amount of such securities or
other property, or the method by which such amount shall be determined,
and the period or periods within which, and the terms and conditions upon
which, any such election may be made;
(n) if the amount of payments of principal of or premium, if any, or
interest, if any, on the Securities of such series, or any Tranche
thereof, may be determined with reference to an index, the manner in which
such amounts shall be determined;
(o) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(p) any Events of Default, in addition to those specified in Section
801, with respect to the Securities of such series, and any covenants of
the Company for the benefit of the Holders of the Securities of such
series in addition to those set forth in Article Six;
(q) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any other
specified Person, in addition to, or in modification of, those set forth
in Article Fifteen:
(r) if the Securities of such Series, or any Tranche thereof, are to
be collateralized by a series of the Company's First Mortgage Bonds or
other securities of the Company or any other specified Person, a
description of such securities and such other terms, if any, relating to
the pledge and custody of such Securities;
(s) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a currency other than
United States Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's indebtedness
in respect of such Securities after the satisfaction and discharge thereof
as provided in Section 701;
(t) if a service charge will be made for the registration of
transfer or exchange of Securities of such series, or any Tranche thereof,
the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the definition of
"Business Day," with respect to the Securities of such series, or any
Tranche thereof; and
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(v) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
If any of the terms of the series, or any Tranche thereof, are
established in a Board Resolution or in an Officers' Certificate pursuant
to a Board Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and
delivery of such Securities. With respect to Securities of a series
subject to a Periodic Offering, such Board Resolution or Officers'
Certificate may provide general terms or parameters for the Securities of
such series and provide either that the specific terms of particular
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with a Company Order as contemplated by the proviso
of the third paragraph of Section 303.
Section 302. Denominations. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Securities, the
Securities of each series shall be issuable in denominations of $1,000 and
any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of
the Board, its Vice Chairman, its President, one of its Vice Presidents or
any other duly authorized officer, under its corporate seal affixed
thereto or reproduced thereon attested by its Secretary, one of its
Assistant Secretaries or any other duly authorized officer. The signature
of any or all of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall the bind the
Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication and delivery,
together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order shall
authenticate and make available for delivery such Securities; provided,
however, that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Company Order may be delivered by the Company
to the Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and make
available for delivery Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, all pursuant to a Company
Order or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the maturity date or
dates, original issue date or dates, interest rate or rates and any other
terms of Securities of such series shall be determined by Company Order or
pursuant to such procedures and (d) if provided for in such procedures,
such Company Order may authorize authentication and delivery pursuant to
oral or electronic instructions from the Company
-16-
or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing.
In authenticating Securities of any series, and accepting responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 901 (a)(2)) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(a) that the forms of such Securities have been duly authorized by
the Company and have been established in conformity with the provisions of
this Indenture;
(b) that the terms of such Securities have been duly authorized by
the Company and have been established in conformity with the provisions of
this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will have been
duly issued under this Indenture, and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance with their terms, subject,
as to enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of equity; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with and
that all registration requirements in respect of the offer and sale of
such Securities by the Company have been complied with;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the opinions described in clauses (b) and (c)
above may, alternatively, state, respectively,
(x) that, when the terms of such Securities shall have been
established pursuant to a Company Order or pursuant to such
procedures as may be specified from time to time by a Company Order,
all as contemplated by and in accordance with a Board Resolution or
an Officers' Certificate pursuant to a Board Resolution, as the case
may be, such terms will have been duly authorized by the Company and
will have been established in conformity with the provisions of this
Indenture; and
(y) that such Securities, when (1) executed by the Company,
(2) authenticated and delivered by the Trustee in accordance with
this Indenture, (3) issued and delivered by the Company and (4) paid
for, all as contemplated by and in accordance with the aforesaid
Company Order or specified procedures, as the case may
-17-
be, will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by the Indenture, and enforceable
in accordance with their terms, subject, as to enforcement, to laws
relating to or affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and insolvency
laws and to general principles of equity.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until such opinion or other documents have been
superseded or revoked. In connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate and deliver
such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
If the form or terms of the Securities of any series have been established
by or pursuant to a Board Resolution as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if the issuance of
such Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
If the Company shall establish pursuant to Section 301(c) that Securities
of a series, or any Tranche thereof, may be issued in whole or in part in global
form, then the Company shall execute and the Trustee shall, in accordance with
this Section and the Company Order with respect to such series or Tranche,
authenticate and deliver one or more Securities in global form that (i) shall
represent and shall be denominated in an authorized aggregate amount equal to
the aggregate principal amount of the Outstanding Securities of such series or
Tranche and tenor to be represented by one or more Securities in global form
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Security or Securities in global form or the nominee of such
Depositary, (iii) shall be delivered to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect (with such modifications as are necessary to reflect the name
of the Depositary):
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"). to the Company or its agent
for registration of transfer, exchange or payment, and
any certificate to be issued is registered in the name
of Cede & Co. or such other name as is requested by
unauthorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHER-
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WISE BY OR TO ANY PERSON IS WRONGFUL in so much as the
registered owner hereof, Cede & Co., has an interest
herein.
Unless and until this Security is exchanged in whole or
in part for certificated Securities registered in the
names of the various beneficial holders hereof as then
certified to the Company by DTC or a successor
depositary, this Security may not be transferred except
as a whole by DTC to a nominee of DTC or by a nominee of
DTC to DTC or another nominee of DTC or by DTC or any
such nominee to a successor depositary or a nominee of
such successor depositary.
This Security may be exchanged for certificated
Securities registered in the names of the various
beneficial owners hereof only if (a) DTC is at any time
unwilling or unable to continue as depositary and a
successor depositary is not appointed by the Company
within 90 days, or (b) the Company elects to issue
certificated Securities to beneficial owners (as
certified to the Company by DTC or a successor
depositary) of all Securities of the series designated
below."
Each Depositary designated pursuant to Section 301(c) for a Registered
Security in global form 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.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder to the Company, or any
Person acting on its behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits hereof.
Section 304. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and
-19-
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities; provided,
however, that temporary Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities of
any series are issued, the Company shall cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor
definitive Securities of the same series, of authorized denominations and of
like tenor and aggregate principal amount.
Unless otherwise specified as contemplated by Section 301 with respect to
a temporary Security in global form, until so exchanged in full as hereinabove
provided, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder.
Section 305. Registration; Registration of Transfer and Exchange. The
Company shall cause to be kept at the office of the Security Registrar
designated pursuant to Section 602 a register (referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and the
registration of transfer thereof.
Upon surrender for registration of transfer of any Security of any series
at the office or agency of the Company maintained pursuant to Section 602 in a
Place of Payment for such series, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of authorized denominations and of like tenor and aggregate principal
amount.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for the individual Securities represented
thereby, in definitive form, a Security in global form representing all or a
portion of the Securities of a series, or any Tranche thereof, may not be
transferred except as a whole by the Depositary for such series or Tranche to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or Trance or a nominee of such
successor Depositary.
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At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series, or any
Tranche thereof, notifies the Company that it is unwilling or unable to continue
as Depositary for the Securities of such series or Tranche or if at any time the
Depositary for the Securities of such series or Tranche shall no longer be
eligible under Section 303, the Company, by Company Order, shall appoint a
successor Depositary with respect to the Securities of such series or Tranche.
If a successor Depositary for the Securities of such series or Tranche is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 301(c) shall no longer be effective with respect to the Securities of
such series or Tranche and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series or Tranche, will authenticate and deliver, Securities
of such series or Tranche in definitive form in an aggregate principal amount
and like terms and tenor equal to the principal amount of the Security or
Securities in global form representing such series or Tranche in exchange for
such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that
individual Securities of any series, or any Tranche thereof, issued in global
form shall no longer be represented by such Security or Securities in global
form. In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual definitive
Securities of such series or Tranche and of the same terms and tenor, will
authenticate and deliver individual Securities of such series or Tranche in
definitive form in authorized denominations and in an aggregate principal amount
equal to the principal amount of the Security or Securities in global form
representing such series or Tranche in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, or any Tranche thereof, the Depositary for such series or
Tranche of Securities may surrender a Security in global form for such series or
Tranche of Securities in exchange in whole or in part for individual Securities
of such series or Tranche in definitive form and of like terms and tenor on such
terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of individual definitive Securities of
such series or Tranche, shall authenticate and deliver, without service charge:
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(a) to the Depositary or to each Person specified by such Depositary
a new individual Security or Securities of the same series or Tranche and
of the same tenor, oauthorized denominations, in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Security in global form; and
(b) to such Depositary a new Security in global form in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Security in global form and the aggregate principal
amount of the individual Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the Trustee.
Securities issued in exchange for a Security in global form pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Security in global form, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee in writing. The Trustee shall deliver such Securities to the persons in
whose names such Securities are so registered or to the Depositary.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee or any transfer
agent) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed by the Holder thereof or his attorney duly
authorized in writing.
Unless otherwise provided in a Board Resolution or an Officers'
Certificate pursuant to a Board Resolution, or in an indenture supplemental
hereto, with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 306 or 1206 not involving any transfer.
The Company shall not be required (a) to issue, to register the transfer
of or to exchange Securities of any series during a period of 15 days
immediately preceding the date notice is given identifying the serial numbers of
the Securities of such series called for redemption or (b) to issue, to register
the transfer of or to exchange any Security so selected for redemption in whole
or in part, except the unredeemed portion of any Security being redeemed in
part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and
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make available for delivery in exchange therefor a new Security of the same
series, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be reasonably required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series, and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall at any time be enforceable by anyone, and any such
new Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 301 with respect to the Securities
of any series, or any Tranche thereof, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such Interest Payment Date.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the related Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in paragraph (a) or (b) below:
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(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this paragraph provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 20 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall promptly cause notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at the address of such Holder as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following paragraph (b).
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this paragraph, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this lndenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners. The Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and premium, if any, and (subject to Sections
305 and 307) interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
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Section 309. Cancellation. All Securities surrendered for payment,
redemption, conversion, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and, if not theretofore canceled, shall
be promptly canceled by the Trustee. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be returned to the Company.
Section 310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Section 311. Payment to Be in Proper Currency. In the case of any
Securities denominated in any currency other than United States Dollars or in a
composite currency (the "Required Currency"), except as otherwise provided
therein, the obligation of the Company to make any payment of the principal
thereof, or the premium or interest thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the Trustee timely holding the full amount of the
Required Currency then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the Required Currency.
The costs and risks of any such exchange, including without limitation the risks
of delay and exchange rate fluctuation, shall be borne by the Company, the
Company shall remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no circumstances shall
the Trustee be liable therefor except in the case of its negligence or willful
misconduct. The Company hereby waives any defense of payment based upon any such
tender or recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee, is less than the full amount
of Required Currency then due and payable.
Section 312. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
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ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 401. Applicability of Article. Securities of any series, or any
Tranche thereof, which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of such series or Tranche) in
accordance with this Article.
Section 402. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution or an
Officers' Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of such Securities to be redeemed. In the case
of any redemption of Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 403. Selection of Securities to Be Redeemed. If less than all the
Securities of any series, or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected by the Security Registrar
from the Outstanding Securities of such series or Tranche not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of such series or Tranche or any
integral multiple thereof) of the principal amount of Securities of such series
or Tranche of a denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if, as indicated
in an Officers' Certificate, the Company shall have offered to purchase all
Securities then Outstanding of any series, or any Tranche thereof, and less than
all of such Securities shall have been tendered to the Company for such
purchase, the Trustee, if so directed by Company Order, shall select for
redemption all such Securities which have not been so tendered.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this lndenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 404. Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 106 to the Holders to be redeemed not less than
30 nor more than 60 days prior to the Redemption Date.
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All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the CUSIP number(s), if any;
(d) if less than all the Securities of any series or Tranche are to
be redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be
redeemed in part;
(e) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date;
(f) the place or places where such Securities are to be surrendered
for payment of the Redemption Price; and
(g) that the redemption is for a sinking fund, if such is the case.
With respect to any notice of redemption of Securities at the election of
the Company, unless, upon the giving of such notice, such Securities shall be
deemed to have been paid in accordance with Section 701, such notice may state
that such redemption shall be conditioned upon the receipt by the Trustee, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities and
that if such money shall not have been so received such notice shall be of no
force or effect and the Company shall not be required to redeem such Securities.
In the event that such notice of redemption contains such a condition and such
money is not so received, the redemption shall not be made and within a
reasonable time thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so received and such
redemption was not required to be made.
Notice of redemption of Securities to be redeemed at the election of the
Company, and any notice of nonsatisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 405. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions thereof so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless, in the case of an
unconditional notice of redemption, the Company shall default in the payment of
the Redemption Price and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
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Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that any installment of interest on any Security the
Stated Maturity of which installment is on or prior to the Redemption Date shall
be payable to the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business on the related Regular
Record Date according to the terms of such Security and subject to the
provisions of Section 307.
Section 406. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Security, without service charge, a new
Security or Securities of the same series, of any authorized denomination
requested by such Holder and of like tenor and in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
Section 501. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of the Securities of
any series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series, or any Tranche thereof, 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, or any Tranche
thereof, is herein referred to as an "optional sinking find payment." If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
Section 502. Satisfaction of Sinking Fund Payments with Securities. The
Company (a) may deliver Outstanding Securities (other than any previously called
for redemption) of a series or Tranche in respect of which a mandatory sinking
fund payment is to be made and (b) may apply as a credit Securities of such
series or Tranche which have been redeemed either at the election of the Company
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 such mandatory sinking fund payment;
provided, however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been previously so
applied. Securities so applied shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through
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operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
Section 503. Redemption of Securities for Sinking Fund. Not less than 45
days prior to each sinking fund payment date for the Securities of any series,
or any Tranche thereof, the Company shall deliver to the Trustee an Officers'
Certificate specifying:
(a) The amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Securities of such
series or Tranche pursuant to Section 502 and stating the basis for such
credit and that such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such Officers' Certificate,
the next succeeding sinking fund payment for such series or Tranche shall
be made entirely in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 403 and cause notice
of the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 404. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
Section 601. Payment of Principal, Premium and Interest. The Company shall
pay the principal of and premium, if any, and interest, if any, on the
Securities of each series in accordance with the terms of such Securities and
this Indenture.
Section 602. Maintenance of Office or Agency. The Company shall maintain
in each Place of Payment for the Securities of any series, or any Tranche
thereof, an office or agency where such Securities may be presented or
surrendered for payment, where such Securities may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Company in respect of such Securities and this Indenture may be
served. The Com-
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pany shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency and prompt notice to the
Holders of any such change in the manner specified in Section 106. If at any
time the Company shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or shall fail to
furnish the Trustee with the address thereof, such presentations and surrenders
of such Securities may be made and notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive such respective presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series, or any Tranche thereof,
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency for such purposes in each Place of Payment for such
Securities in accordance with the requirements set forth above. The Company
shall give prompt written notice to the Trustee, and prompt notice to the
Holders in the manner specified in Section 106, of any such designation or
rescission and of any change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at any office of the Company, in
which event the Company shall perform all functions to be performed at such
office or agency.
Section 603. Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to the
Securities of any series, or any Tranche thereof, it shall, on or before each
due date of the principal of and premium, if any, or interest, if any. on any of
such Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, prior to each due
date of the principal of and premium, if any, or interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of its action or failure so to
act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Trustee, to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
shall:
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(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if any, on Securities of such series or
Tranche in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal of and premium, if any, or interest, if any, on the
Securities of such series or Tranche; and
(c) 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.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and premium, if any,
or interest, if any, on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest has become due and payable shall
be paid to the Company on Company Request, or, if then held by the Company,
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to the Company, may
at the expense of the Company cause to be mailed, on one occasion only, notice
to such Holder that such money remains unclaimed and that, after a date of such
mailing, any unclaimed balance of such money then remaining will be paid to the
Company.
Section 604. Corporate Existence. Subject to the rights of the Company
under Article Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the rights (charter and statutory) and franchises of the Company; provided,
however, that the Company shall not be required to preserve any such right or
franchise if, in the judgment of the Company, the preservation thereof is no
longer desirable in the conduct of the business of the Company and the loss
thereof will not adversely affect the interests of the Holders in any material
respect.
Section 605. Maintenance of Properties. The Company shall cause (or, with
respect to property owned in common with others, make reasonable effort to
cause) all its properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and
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working order and shall cause (or, with respect to property owned in common with
others, make reasonable effort to cause) to be made all necessary repairs.
renewals, replacements, betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the business carried on in
connection therewith may be properly conducted; provided, however, that nothing
in this Section shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business.
Section 606. Statement as to Compliance; Notice of Default. The Company
shall deliver to the Trustee, on or prior to June 1 in each year, a written
statement, which need not comply with Section 102, signed by its principal
executive officer, principal financial officer or principal accounting officer,
stating, as to each signer thereof, that
(a) a review of the activities of the Company during the immediately
preceding twelve month period and of performance under this Indenture has
been made under such officer's supervision, and
(b) to the best of such officer's knowledge, based on such review,
either (1) the Company has fulfilled all its obligations under this
Indenture throughout such period or if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof and (2) no Event of Default
has occurred and is continuing or, if an Event of Default has occurred and
is continuing, specifying each such Event of Default known to such officer
and the nature and status thereof.
The Company shall file with the Trustee written notice of the occurrence
of any Default or Event of Default within five Business Days of its becoming
aware of any such Default or Event of Default.
Section 607. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
(a) Section 602 or any additional covenant or restriction specified with respect
to the Securities of any series, or any Tranche thereof, as contemplated by
Section 301 if before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches with respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted, considered as one class,
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition and (b)
Section 604, 605, 606 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of Securities Outstanding
under this Indenture shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall extend to or
affect such term, provision or condition except to the extent expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in any such term, provision or condition shall
remain in full force and effect.
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ARTICLE SEVEN
SATISFACTION AND DISCHARGE
Section 701. Satisfaction and Discharge of Securities. Any Security and
Securities, or any portion of the principal amount thereof, shall be deemed to
have been paid for all purposes of this Indenture, and the entire indebtedness
of the Company in respect thereof shall be deemed to have been satisfied and
discharged, if there shall have been irrevocably deposited with the Trustee, in
trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof
at the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by
the Trustee, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof; provided, however,
that in the case of the provision for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or portions thereof shall
have been selected by the Security Registrar as provided herein and, in the case
of a redemption, the notice requisite to the validity of such redemption shall
have been given or irrevocable authority shall have been given by the Company to
the Trustee to give such notice, under arrangements satisfactory to the Trustee;
and provided, further, that the Company shall have delivered to the Trustee:
(x) if such deposit shall have been made prior to the Maturity of
such Securities, a Company Order stating that the money and Eligible
Obligations deposited with the Trustee in accordance with this Section
shall be held by the Trustee, in trust, as provided in Section 703; and
(y) if Eligible Obligations shall have been deposited with the
Trustee, an opinion of an independent public accountant of nationally
recognized standing, selected by the Company, to the effect that the
requirements set forth in clause (b) above have been satisfied.
Upon receipt by the Trustee of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x) and (y) above, the Trustee shall, upon receipt of a Company Request,
acknowledge in writing that the Security or Securities or portions thereof with
respect to which such deposit was made are deemed to have been paid for all
purposes of this Indenture and that the entire indebtedness of the Company in
respect thereof is deemed to have been satisfied and discharged.
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If payment at Stated Maturity of less than all of the Securities of any
series, or any Tranche thereof, is to be provided for in the manner and with the
effect provided in this Section, the Security Registrar shall select such
Securities, or portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the Securities of a
series or Tranche, as the case may be.
In the event that Securities which shall be deemed to have been paid as
provided in this Section do not mature and are not to be redeemed within the
sixty (60) day period commencing with the date of the deposit with the Trustee
of moneys or Eligible Obligations, as aforesaid, the Company shall, as promptly
as practicable, give a notice, in the same manner as a notice of redemption with
respect to such Securities, to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding the satisfaction and discharge of any Securities as
aforesaid, the obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice of redemption),
602, 603, 907 and 914 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee and each Holder of
Securities which are deemed to have been paid as provided in this Section
against, any tax, fee or other charge imposed on or assessed against the
Eligible Obligations deposited with the Trustee or the principal or interest
received by the Trustee in respect of such Eligible Obligations.
Anything herein to the contrary notwithstanding, if, at any time after a
Security would be deemed to have been satisfied or discharged pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee shall
be required to return the money or Eligible Obligations, or combination thereof,
deposited with it as aforesaid to the Company or its representative under any
applicable Federal or State bankruptcy, insolvency or other similar law, the
indebtedness of the Company in respect of such Security shall thereupon be
deemed retroactively not to have been satisfied and discharged, as aforesaid,
and to remain Outstanding.
Section 702. Satisfaction and Discharge of Indenture. This Indenture shall
upon Company Request cease to be of further effect (except as hereinafter
expressly provided), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(1) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(B) Securities deemed to have been paid in accordance with Section
701) have been delivered to the Trustee for cancellation; or
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(2) all Securities not theretofore delivered to the Trustee
for cancellation (other than Securities described in clause (1) (A)
above) shall be deemed to have been paid in accordance with Section
701;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
In the event there shall be Securities of two or more series Outstanding
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of all series as to which it is Trustee and if the other
conditions thereto are met. In the event there shall be two or more Trustees
hereunder, then the effectiveness of each such instrument from each Trustee
hereunder shall be conditioned upon receipt of such instruments from each other
Trustee hereunder.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 914 and this
Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 907, any and all money, securities and
other property then held by the Trustee for the benefit of the Holders of the
Securities other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
Section 703. Application of Trust Money. Neither the Eligible Obligations
nor the money deposited with the Trustee pursuant to Section 701, nor the
principal or interest payments on any such Eligible Obligations, shall be
withdrawn or used for any purpose other than, and shall be held in trust for,
the payment of the principal of and premium, if any, and interest, if any, on
the Securities or portions of principal amount thereof in respect of which such
deposit was made, all subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have occurred and be
continuing an Event of Default, any cash received from such principal or
interest payments on such Eligible Obligations deposited with the Trustee, if
not then needed for such purpose, shall to the extent practicable, be invested
in Eligible Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such amount as shall be
sufficient to pay when due the principal of, the premium, if any, and interest,
if any, due and to become due on such Securities or portions thereof on and
prior to the Maturity thereof, and interest earned from such reinvestment shall
be paid over to the Company as received by the Trustee, free and clear of any
trust, lien or pledge under this Indenture except the lien provided by Section
907; and provided, further, that, so long as there shall not have occurred and
be continuing an Event of Default, any moneys held by the Trustee in accordance
with this
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Section on the Maturity of all such Securities in excess of the amount required
to pay the principal of and premium, if any, and interest, if any, then due on
such Securities shall be paid over to the Company free and clear of any trust,
lien or pledge under this Indenture except the lien provided by Section 907.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 801. Events of Default. "Events of Default," wherever used herein
with respect to Securities of any series, means any one of the following events:
(a) failure to pay any interest on any Security of such series
within 30 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series when the same becomes due and payable at its
Maturity; or
(c) failure to perform, or breach of, any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty of the
Company a default in the performance of which or breach of which is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of 60 days after
there has been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(d) if an event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness, for money borrowed of the Company
(including an event of default under this Indenture with respect to
Securities of any series other than such series), whether such
indebtedness now exists or shall hereafter be created, shall happen and
such event of default shall either (i) result in such indebtedness in an
amount in excess of $15,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise become due and payable or
(ii) result from the failure by the Company to make any payment in excess
of $15,000,000 of the principal of such indebtedness on the date it
becomes due and payable (after the expiration of any applicable grace
periods), and such acceleration shall not have been rescinded or annulled
or such failure to make payment shall not have been cured, as the case may
be, or such indebtedness shall not have been otherwise discharged, within
a period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities of such series a written notice specifying such event of
default and requiring the Company to cause such acceleration
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to be rescinded or annulled or to cause such failure to make payment to be
cured, as the case may be, or to cause such indebtedness to be otherwise
discharged, and stating that such notice is a "Notice of Default"
hereunder; provided, however, subject to the provisions of Sections 901
and 902, in the absence of actual knowledge of a Responsible Officer of
the Trustee, as such officer, assigned to its Corporate Trust Department,
the Trustee shall not be charged with knowledge of any event of default
unless written notice thereof shall have been given to the Trustee by the
Company, by the trustee then acting under any mortgage, indenture or other
instrument (including any other trustee acting under this Indenture for
any other series of Securities) under which such event of default shall
have occurred, by the holder or an agent of any holder of such
indebtedness, or by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series; or
(e) the entry by a court having jurisdiction in the premises of (1)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition by one or more Persons other than the Company seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
any such decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of 90 consecutive
days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in a case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the authorization of such action by
the Board of Directors; or
(g) any other Events of Default specified with respect to Securities
of such series.
Section 802. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default shall have occurred and be continuing with respect to
Securities of any series at the time Outstanding, then in every such case the
Trustee or the Holders of not less than 25% in principal
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amount of the outstanding Securities of such series may declare the principal
amount (or, if any of the Securities of such series are Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof as contemplated by Section 301) of all of the Securities of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon receipt by the
Company of notice of such declaration such principal amount (or specified
amount) shall become immediately due and payable; provided, however, that if an
Event of Default shall have occurred and be continuing with respect to more than
one series of Securities, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the outstanding Securities of all such series,
considered as one class, may make such declaration of acceleration, and not the
Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such declaration of acceleration shall, without further act, be deemed to
have been waived and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay:
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee under Section 907; and
(b) any other Event or Events of Default with respect to Securities
of such series, other than the nonpayment of the principal of Securities
of such series which shall have become due solely by such declaration or
acceleration, shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
Section 803. Collection of Indebtedness and Suits for Enforcement by
Trustee. If any Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the
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Securities of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover any amounts due to the
Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series shall have
occurred and be continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 804. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company, of any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustees shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holder, to
pay to the Trustee any amounts due it under Section 907.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 805. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
Section 806. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or interest, if any, upon
presentation of the Securities in respect of which or for the benefit of which
such money shall have been collected and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
907;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, premium,
if any, and interest, if any, respectively; provided, however, if such
money was received from the liquidation or other disposition of the
Company's First Mortgage Bonds or other securities of the Company or any
other Person collateralizing a particular series of Securities, or any
Tranche thereof, such money shall be applied pursuant to this clause
SECOND, first to the payment of the amounts then due and unpaid upon the
Securities of such series or any Tranche for principal of and premium, if
any, and interest, if any, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively, and
second, to the payment of the amounts then due and unpaid upon other
Securities to the extent and in the manner otherwise set forth in this
clause SECOND; and
THIRD: To the Company.
Section 807. Limitation on Suits. No Holder shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
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(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series in respect of which an
Event of Default shall have occurred and be continuing, considered as one
class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the outstanding Securities of
all series in respect of which an Event of Default shall have occurred and
be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this lndenture to affect, disturb or prejudice the rights of any other of
such Holders or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
Section 808. Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to Section
307) interest, if any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 809. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such
proceeding, the Company, and Trustee and such Holder shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and such Holder shall continue as though no such
proceeding had been instituted.
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Section 810. Rights and Remedies Cumulative. Except as otherwise provided
in the last paragraph of Section 306, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 811. Delay or Omission Not Waiver. No delay or omission of the
Trustee or any Holder to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 812. Control by Holders of Securities. If an Event of Default
shall have occurred and be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the Outstanding Securities of such
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such
series; provided, however, that if an Event of Default shall have occurred and
be continuing with respect to more than one series of Securities, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of all
such series, considered as one class, shall have the right to make such
direction, and not the Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and shall not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's
sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 813. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences except a
default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any and all
Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any subsequent or other default or impair
any right consequent thereon.
Section 814. Undertaking for Costs. The Company and the Trustee agree, and
each Holder by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
Section 815. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE NINE
THE TRUSTEE
Section 901. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default with respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to Securities of
such series, such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth
of the statements and the correctness
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of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any 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) In case an Event of Default with respect to Securities of any series
shall have occurred and be continuing, the Trustee shall exercise, with respect
to Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any one or more series, as provided herein,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, under this Indenture with respect to
the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
lndenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 902. Notice of Defaults. Within 90 days after the occurrence of
any Default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to
receive reports pursuant to Section l003(c), notice of any Default hereunder
known to the Trustee, unless such Default shall have been cured and waived;
provided, however, that, except in the case of a Default in the payment of the
principal of or
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premium, if any, or interest, if any, on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of the
Securities of such series; and provided, further, that in the case of any
Default of the character specified in Section 801(c) with respect to Securities
of such series, no such notice to Holders shall be given until at least 75 days
after the occurrence thereof.
Section 903. Certain Rights of Trustee. Subject to the provisions of
Section 901:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be therein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the
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books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be charged with knowledge of any Event of
Default with respect to the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible Officer of the Trustee
assigned to the corporate trust department of the Trustee (or any
successor division or department of the Trustee) shall have actual
knowledge of the Event of Default or (2) written notice of such Event of
Default shall have been given to the Trustee by the Company, any other
obligor on such Securities or by any Holder of such Securities; and
(i) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed, upon
advice of counsel, by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
Section 904. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) shall be taken as the statement of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 905. May Hold Securities. The Trustee, any Authenticating Agent,
any Paying Agent, and Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 906. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds, except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
Section 907. Compensation and Reimbursement. The Company shall
(a) pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder
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(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) reimburse the Trustee upon its request for all expenses,
disbursements and advances reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
compensation and the expenses and disbursements of its agents and counsel,
both internal and external), except any such expense, disbursement or
advance as may be attributable to its negligence, willful misconduct or
bad faith; and
(c) indemnify the Trustee and hold it harmless from and against, any
and all loss, damage, claims, liability or expense, including taxes (other
than taxes based upon, measured or determined by the income of the
Trustee) reasonably incurred without negligence, willful misconduct or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee in its capacity as Trustee
other than property and funds held in trust under Section 703 (except as
otherwise provided in Section 703).
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 801(e) or Section 801 (f), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 908. Disqualification; Conflicting Interests.
(a) if the Trustee shall have or acquire any conflicting interest
(as defined in Section 3 10(b) of the Trust Indenture Act), and a Default
has occurred and is continuing with respect to the Securities of any
series, it shall, within 90 days after ascertaining that it has such
conflicting interest, and if the Default to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, either eliminate such conflicting
interest or resign with respect to the Securities of such series in the
manner and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit, in the manner and to
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the extent provided in Section 1003(c), to all Holders of Securities of
such series notice of such failure.
(c) Except in the case of a Default in the payment of the principal
of or interest on any Security, or in the payment of any sinking fund or
purchase fund installment, the Trustee shall not be required to resign as
provided by this Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for
hearing thereon, that (1) the Default to which the conflicting interest
relates may be cured or waived during a reasonable period and under the
procedures described in such application and (2) a stay of the Trustee's
duty to resign will not be inconsistent with the interests of the Holders.
The filing of such an application shall automatically stay the performance
of the duty to resign until the Commission orders otherwise.
(d) Any resignation of the Trustee pursuant to this Section shall
become effective only upon the appointment of a successor Trustee, and
such successor Trustee's acceptance of such appointment, in the manner
hereinafter specified in this Article.
Section 909. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State authority and
qualified and eligible under this Article. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of such
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article. Neither
the Company nor any Person directly or indirectly controlling, controlled by, or
under common control with the Company may serve as Trustee hereunder.
Section 910. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 911 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) if at any time:
(1) the Trustee shall fail to comply with Section 908(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909 and
shall fail to resign after written request therefor by the Company or by
any such Holder, 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, (x)
the Company by a Board Resolution may remove the Trustee with respect to
all Securities or (y) subject to Section 814, any Holder who has been a
bona fide Holder 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 with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 911. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 911, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 911, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with
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respect to the Securities of any series by mailing written notice of such event
by first-class mail, postage prepaid, to all Holders of Securities of such
series as their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 911. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of all sums owed to
it, execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee, and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee, upon payment of all sums owed to it. shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company shall execute
any instruments which fully vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in subsection (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 912. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 913. Preferential Collection of Claims Against Company. (a)
Subject to subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Company
within three months prior to a default, as defined in subsection (c) of this
Section, 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 and the holders of other
indenture securities, as defined in subsection (c) of this Section:
(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 interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
clause (2) of this paragraph, 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 Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property,
if disposed of, subject, however, to the rights, if any, of the Company
and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(1) to retain for its own account (A) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, (B) the proceeds
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of the bona fide sale of any such claim by the Trustee to a third Person
and (C) distributions made in cash, securities or other property in
respect of claims filed against the Company in bankruptcy or receivership
or in proceedings for reorganization pursuant to the Federal Bankruptcy
Act or applicable State law;
(2) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was held prior to the
beginning of such three months' period;
(3) 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
three months' 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, would occur within three months; or
(4) to receive payment on any claim referred to in clause (2) or (3)
of this paragraph, against the release of any property held as security
for such claim as provided in such clause (2) or (3), as they case may be,
to the extent of the fair value of such property.
For the purposes of clauses (2), (3) and (4) of this paragraph, property
substituted after the beginning of such three months' 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 preexisting claim of the Trustee as such creditor, such claim
shall have the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property held
in such special account and the proceeds thereof shall be apportioned among the
Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders 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 Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act 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 Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act 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
proceedings for reorganization pursuant to the Federal Bankruptcy
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Act 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 proceedings for reorganization is pending shall have
jurisdiction (1) to apportion among the Trustee, the Holders 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 proceeds thereof, or (2)
in lieu of such apportionment, in whole or in part, to give the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders 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 to the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
three months' period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three months' period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:
(1) 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 three months' period; and
(2) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this
Section 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 advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(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;
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(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of
this Section;
(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
Company; and
(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.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on 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" means securities upon
which the Company is an obligor outstanding under any other indenture (A)
under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of this Section and (C) under
which a default exists at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligations;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
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Section 914. Appointment of Authenticating Agent. The Trustee may appoint
an Authenticating Agent or Agents with respect to the Securities of one or more
series, or any Tranche thereof, which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series or Tranche issued upon
original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Whenever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State or
territory thereof or the District of Columbia or the Commonwealth of Puerto
Rico, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $25,000,000 and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
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The provisions of Sections 308, 904 and 905 shall be applicable to each
Authenticating Agent.
If an appointment with respect to the Securities of one or more series, or
any Tranche thereof, shall be made pursuant to this Section, the Securities of
such series or Tranche may have endorsed thereon, in addition to the Trustee's
certificate of authentication, and alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANK OF AMERICA ILLINOIS
As Trustee
By ______________________________
As Authenticating Agent
By ______________________________
Authorized Signatory
If all of the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
(which, if so requested by the Company, may be an Affiliate of the Company)
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
Section 915. Trustee's Application for Instructions from the Company. Any
application by the Trustee for written instructions from the Company may, at the
option of the Trustee, set forth in writing any action proposed to be taken or
omitted by the Trustee under this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective. The Trustee
shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three business
days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
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ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 1001. Company to Furnish Trustee Names and Addresses of Holders.
The Company shall furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than June 1 and December 1, in each
year. a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the
Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders as of the preceding May 15 or November
15, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 1002. Preservation of Information; Communications to Holders. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders (1) contained in the most recent list
furnished to the Trustee as provided in Section 1001 and (2) received by the
Trustee in any other capacity. The Trustee may (1) destroy any list furnished to
it as provided in Section 1001 upon receipt of a new list so furnished, (2)
destroy any information received by it as Paying Agent (if so acting) hereunder
upon delivering to itself as Trustee, not earlier than May 15 or November 15, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, and (3)
destroy any list delivered to itself as Trustee which was complied from
information received by it as Paying Agent (if so acting) hereunder upon the
receipt of a new list so delivered.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities 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 Section 1002(a), or
(2) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in
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accordance with Section 1002(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 1002(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee by such applicants of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender by such
applicants as aforesaid; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, shall
be deemed to have agreed with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 1002(b), 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 Section 1002(b).
Section 1003. Reports by Trustee. (a) The Trustee shall transmit to the
Holders as hereinafter provided, on or prior to July 15 in each year, a brief
report with respect to any of the following events which may have occurred
within the previous 12 months (but if no such event has occurred within such
period, no report need be transmitted):
(1) any change in its eligibility and its qualifications under
Section 909;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or
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funds held or collected by it as Trustee, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
so remaining unpaid aggregate not more than 1/2 of 1 % of the principal
amount of the Securities Outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
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 Section 913(b)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject to
the lien of this Indenture (and the consideration therefor, if any) which
it has not previously reported;
(7) any additional issue of Securities which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities or the Securities of any series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 902.
(b) The Trustee shall transmit to the Holders, as provided in subsection
(c) of this Section, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
Indenture) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, 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 10%
or less of the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail
(1) to all Holders, as their names and addresses appear in the
Security Register;
(2) to such Holders as have, within two years preceding such
transmission, filed their names and addresses with the Trustee for that
purpose; and
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(3) except in the case of reports pursuant to subsection (b) of this
Section, to each Holder whose name and address is preserved at the time by
the Trustee, as provided in Section 1002(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any
securities exchange.
Section 1004. Reports by Company. The Company shall:
(a) file with the Trustee, within 45 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, 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) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(c) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders, in the manner and to the extent provided in
Section 1003(c) with respect to reports pursuant to Section 1003(a), such
summaries of any information, documents and reports required to be filed
by the Company pursuant to paragraphs (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE TRANSFER OR LEASE
Section 1101. Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or
corporations or convey, transfer or lease its properties and assets
substantially as an entirety to any Person or Persons, unless:
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(a) the corporation or corporations formed by such
consolidation or into which the Company is merged or the Person or
Persons which acquire by conveyance or transfer, or which lease, the
properties and assets of the Company substantially as an entirety shall
be a Person or Persons organized and existing under the laws of the
United States of America, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all Outstanding Securities
and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an
obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of such transaction, no Event
of Default or Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance transfer or lease and such indenture
supplemental hereto complies with this Article and that all conditions
precedent herein provided for or relating to such transactions have
been complied with.
Section 1102. Successor Corporation Substituted. Upon any consolidation by
the Company with or merger by the Company into any other corporation or
corporations or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety in accordance with Section 1101, the
successor corporation or corporations formed by such consolidation or into which
the Company is merged or the Person or Persons to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person or Persons had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person or
Persons shall be relieved of all obligations and covenants under this Indenture
and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
Section 1201. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities, all as provided in Article Eleven; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities, or any Tranche thereof (and if
such covenants are to be for the benefit of less than all Securities,
stating that such covenants are expressly being included solely for the
benefit of such series or Tranche) or to surrender any right or power
herein conferred upon the Company; or
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(c) to add any additional Events of Default with respect to all or
any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of
the Holders of Securities of any series or Tranche in any material
respect, such change, elimination or addition shall become effective with
respect to such series or Tranche only when no Security of such series or
Tranche remains Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a separate or 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 911(b); or
(h) to provide for the procedures required to permit the Company to
utilize, at its option, a noncertificated system of registration for all,
or any series or Tranche of, the Securities; or
(i) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities, or any Tranche
thereof, and this Indenture may be served; provided, however, that any
such place is located in New York, New York, Chicago, Illinois, Nashville,
Tennessee or Los Angeles, California or in any other city located in the
United States of America which has a population of at least 1,000,000
inhabitants; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such other
provisions
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shall not adversely affect the interests of the Holders of Securities of
any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture
Act shall be amended at any time or times after the date of the execution and
delivery of this Indenture and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such changes or incorporate
such provisions by reference or otherwise, this Indenture shall be deemed
to have been amended so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee may, without the consent of
any Holders, enter into an indenture supplemental hereto to effect or
evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes to, or
the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof or at any time thereafter, are required by
the Trust Indenture Act to be contained herein this Indenture shall be
deemed to have been amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect such changes or
elimination; or
(z) if, by reason of any such amendment, one or more provisions
which, at the date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be contained herein
shall be deemed to be incorporated herein by reference or otherwise, or
otherwise made applicable hereto, and shall no longer be required to be
contained herein, the Company and the Trustee may, without the consent of
any Holders, enter into an indenture supplemental hereto to effect the
elimination of such provisions.
Section 1202. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate principal amount
of the Securities of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Trances so directly affected, considered as one
class,
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shall be required; and provided, further, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security of each
series or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or the method of
calculating such rate (or the amount of any installment of interest
thereon) or yield or any premium payable upon the redemption thereof, or
reduce the amount of the principal of a Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 802, or change the coin or currency (or other
property) in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the Outstanding
Securities of such series or Tranche, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with any provision of
this Indenture or of any default hereunder and its consequences, or reduce
the requirements of Section 1304 for quorum or voting, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813, except to increase the percentages in principal amount
referred to in this Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 911(b) and
1201(g).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act or Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 1203. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
indenture, the Trustee shall be entitled to receive, and (subject to Section
901) shall be fully protected in relying upon, an Opinion of Counsel stating
that
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the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
Section 1204. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby. Any
supplemental Indenture permitted by this Article may restate this Indenture in
its entirety, and, upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all purposes.
Section 1205. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof, authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and made available for delivery by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
Section 1207. Modification Without Supplemental Indenture. If the terms of
any particular series of Securities shall have been established in a Board
Resolution or an Officers' Certificate pursuant to a Board Resolution as
contemplated by Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms may be affected
by means of a supplemental Board Resolution or Officers' Certificate, as the
case may be, delivered to, and accepted by, the Trustee; provided, however, that
such supplemental Board Resolution or Officers' Certificate shall not be
accepted by the Trustee or otherwise be effective unless all conditions set
forth in this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a Supplemental Indenture
shall have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officers' Certificate shall
be deemed to be a "supplemental indenture" for purposes of Section 1204 and
1206.
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ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 1301. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, may be called at any time and from time to time pursuant to this
Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series or Tranches.
Section 1302. Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, for any purpose specified in Section 1301,
to be held at such time and at such place in Chicago, Illinois, as the Trustee
shall determine, or, with the approval of the Company, at any other place.
Notice of every such meeting, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 25% in aggregate principal amount
of all of such series and Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series and Tranches in the
amount above specified, as the case may be, may determine the time and the place
in Chicago, Illinois, or in such other place as shall be determined or approved
by the Company, for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, shall be valid without notice if the Holders
of all Outstanding Securities of such series or Tranche are present in person or
by proxy and if representatives of the Company and the Trustee are present, or
if notice is waived in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or by such of them as are not present at
the meeting in person or by proxy, and by the Company and the Trustee.
Section 1303. Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranche, or (b) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series or Tranches by such Holder or Holders. The
only Persons who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of
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the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 1304. Quorum, Action. The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a quorum for a meeting of
Holders or Securities of such series and Tranches; provided, however, that if
any action is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of such
series and Tranches, considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series and Tranches, considered as one class, shall constitute a quorum. In the
absence of a quorum within one hour of the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders of Securities of such
series and Tranches, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1302(a) not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series and Tranches
which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to a meeting
or adjourned meeting duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been called, considered
as one class; provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and Tranches,
considered as one class, may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
Section 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings. (a) Attendance at meeting of Holders of
Securities may be in person or
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by proxy; and, to the extent permitted by law, any such proxy shall remain in
effect and be binding upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by the Holder or future
Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding of such Securities and
of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(c) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b), in which case the Company
or the Holders of Securities of the series and Tranches calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote for
each $1,000 principal amount of Securities held or represented by such Holder;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum is
present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meeting. The vote
upon any resolution submitted to any meeting of Holders shall be by written
ballots on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities, of the series and Tranches with respect to which the
meeting shall have been called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their
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verified written reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders 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 given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 1307. Action Without Meeting. In lieu of a vote of Holders at a
meeting as hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action may be made,
given or taken by Holders by written instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1401. Liability Solely Corporate. No recourse shall be had for the
payment of the principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon or otherwise in
respect thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or future
of the Company or of any predecessor or successor corporation (either directly
or through the Company or a predecessor or successor corporation), whether by
virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly agreed
and understood that this Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever, shall attach to, or be
incurred by, any incorporator, stockholder, officer or director, past, present
or future, of the Company or of any predecessor or successor corporation, either
directly or indirectly through the Company or any predecessor or successor
corporation, because of the indebtedness hereby authorized or under or by reason
of any of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or to be implied herefrom or therefrom, and that any
such personal liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of this Indenture and
the issuance of the Securities.
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ARTICLE FIFTEEN
CONVERSION OF SECURITIES
Section 1501. Applicability: Conversion Privilege and Conversion Price.
Securities of any series which are convertible into Common Stock, without par
value, of the Company ("Common Stock") shall be convertible in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
Subject to and upon compliance with the provisions of this Article
Fifteen, at the option of the Holder thereof, any Security or any portion of the
principal amount thereof which is $1,000 or an integral multiple of $1,000 may
be converted at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable shares (calculated as to each conversion to the
nearest one-hundredth of a share) of Common Stock of the Company, at the
Conversion Price, determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall expire at the close of business on the
date specified for Securities of such series. In case a Security or portion
thereof is called for redemption, such conversion right in respect of the
Security or portions so called shall expire at the close of business on the
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Prices") shall be the price specified
in relation to Securities of such series pursuant to Section 301. The Conversion
Price shall be adjusted in certain instances as provided in paragraphs (1), (2),
(3), (4) and (7) of Section 1504.
Section 1502. Exercise of Conversion Privilege. In order to exercise the
conversion privilege, the Holder of any Security to be converted shall surrender
such Security, together with the conversion notice duly executed, at any office
or agency of the Company maintained for that purpose pursuant to Section 602,
accompanied by written notice to the Company at such office or agency that the
Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted.
Securities or portions thereof surrendered for conversion during the period from
the close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(unless such Securities or portions thereof have been called for redemption on a
Redemption Date within such period) be accompanied by payment to the Company or
its order, in New York Clearing House funds or other funds acceptable to the
Company, of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of Securities or portions thereof being surrendered
for conversion. No payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities surrendered for conversion or,
except as provided in Section 1504, on account of any dividends on the Common
Stock issued upon conversion.
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Securities shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1503.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder thereof, at the expense of the Company, a
new Security or Securities of authorized denominations in aggregate principal
amount equal to the unconverted portion of the principal amount of such
Security.
Section 1503. Fractions of Shares. No fractional shares of Common Stock
shall be issued upon conversion of Securities. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fractions in an amount equal to the same fraction of the market price
(determined as provided in the last sentence of paragraph 6 of Section 1504) at
the close of business on the day of conversion.
Section 1504. Adjustment of Conversion Price. (1) In case the Company
shall pay or make a dividend or other distribution on any class of capital stock
of the Company in Common Stock, the Conversion Price in effect at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall be
reduced by multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination and the denominator shall
be the sum of such number of shares and the total number of shares constituting
such dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.
(2) In case the Company shall issue rights or warrants to all holders of
its Common Stock entitling them to subscribe for or purchase shares of Common
Stock at a price per share less than the market price (determined as provided in
paragraph (6) of this Section) of the com-
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mon Stock on the date fixed for the determination of stockholders entitled to
receive such rights or warrants, the Conversion Price in effect at the opening
of business on the day following the date fixed for such determination shall be
reduced by multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number of shares
of Common Stock which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase at
such market price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of such
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not issue any rights or warrants in respect of shares of Common Stock held
in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the Conversion Price in effect at the
opening of business on the day following the day upon which such subdivisions
become effective shall be proportionately reduced, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a smaller number
of shares of Common Stock, the Conversion Price in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increases, as
the case may be, to become effective immediately after the opening of business
on the day following the day upon which such subdivision or combination become
effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidence of its indebtedness or assets (including
securities, but excluding any rights or warrants referred to in paragraph (2) of
this Section, any dividend or distribution paid in cash out of the retained
earnings of the Company and any dividend or distribution referred to in
paragraph (1) of this Section), the Conversion Price shall be adjusted so that
the same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the market price per share (determined
as provided in paragraph (6) of this Section) of the Common Stock on the date
fixed for such determination, reduced by the then fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee) of the portion of
the assets or evidence of indebtedness so distributed applicable to one share of
Common Stock and the denominator shall be such market price per share of the
Common Stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
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(5) The reclassification of Common Stock into securities including other
than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 1511 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be
"the date fixed for the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination") within the meaning of
paragraph (4) of this Section, and (b) a subdivision or combination, as the case
may be, of the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective," as the case may be, and "the day
upon which such subdivision or combination becomes effective" within the meaning
of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraph (2) and (4) of this
Section, the market price on any date shall be deemed to be the average of the
daily market prices for the ten consecutive Business Days selected by the
Company commencing not less than ten nor more than 80 Business Days before the
day in question. The closing price for each day shall be the last reported sales
price regular way on the composite tape or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on the NASDAQ National Market System ("NASDAQ") or,
if the Common Stock is not listed or admitted to trading on NASDAQ, on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, the average of the closing bid and asked prices as
furnished by any NASDAQ member firm selected from time to time by the Company
for that purpose.
(7) The Company may make such reductions in the Conversion Price, in
addition to those required by paragraphs (1), (2), (3) and (4) of this Section,
as it considers to be advisable in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights shall not be taxable
to the recipients.
(8) The Trustee has no duty to determine when an adjustment under this
Article Fifteen should be made, how it should be made or what it should be. The
Trustee has no duty to determine whether a supplemental indenture under Section
1511 need be entered into or whether any provisions of any supplemental
indenture are correct. The Trustee shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Securities. The Trustee shall not be responsible for the
Company's failure to comply with this Article Fifteen.
Section 1505. Notice of Adjustment of Conversion Price. Whenever the
Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 1504 and shall prepare a certificate signed by the
Treasurer or an Assistant Treasurer, the Controller or an Assistant
Controller of the Company setting forth the
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adjusted Conversion Price and showing in reasonable detail the facts upon
which such adjustment is based, and such certificate shall forthwith be
filed with the Trustee and at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 602; and
(b) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be required,
and as soon as practicable after it is required, such notice shall be
prepared by the Company, filed with the Trustee and mailed by the Company
to all Holders at their last addresses as they shall appear in the
Security Register.
Section 1506. Notice of Certain Corporate Action. In case:
(a) the Company shall declare a divided (or any other distribution)
on Common Stock payable otherwise than in cash of its retained earnings;
or
(b) the Company shall authorize the granting to the holders of
Common Stock of rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common Stock), or
of any consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company;
or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
Then the Company shall cause to be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of securities pursuant to
Section 602, and shall cause to be mailed to all Holders at their last addresses
as they shall appear in the Security Register, at least 20 days (or ten days in
any case specified in clause (a) or (b) above) prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend, distribution, rights
or warrants are to be determined, or (y) the date on which such
reclassification, liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for securities, cash or
other property deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up. The failure to give
notice required by this Section or any defect therein shall not affect the
legality or validity of any dividend, distribution, rights, warrants,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, or the vote on any such action.
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Section 1507. Company to Reserve Common Stock. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common Stock then
issuable upon the conversion of all outstanding Securities.
Section 1508. Taxes on Conversions. The Company will pay any and all
transfer taxes that may be payable in respect of the issue or delivery of shares
of Common Stock on conversion of Securities pursuant thereto. The Company shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
Section 1509. Covenant as to Common Stock. The Company covenants that all
shares of Common Stock which may be issued upon conversion of Securities will
upon issue be fully paid and nonassessable and, except as provided in Section
1508, the Company will pay all taxes, liens and charges with respect to the
issue thereof.
Section 1510. Cancellation of Converted Securities. All Securities
delivered for conversion shall be delivered to the Trustee for cancellation and
the Trustee shall dispose of the same as provided in Section 309.
Section 1511. Provisions in Case of Consolidation, Merger or Sale of
Assets. In case of any consolidation of the Company with, or merger of the
Company into, any other corporation or corporations, any merger of another
corporation into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company) or any sale or transfer of all or substantially all
of the assets of the Company, the corporation or corporations formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then outstanding shall have
the right thereafter, during the period such Security shall be convertible as
specified in Section 1501, to convert such Security only into the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, sale or transfer, assuming such
holder of Common Stock of the Company (i) is not a corporation with which the
Company consolidated or into which the Company merged or which merged into the
Company or to which such sale or transfer was made, as the case may be
("constituent corporation"), or an Affiliate of a constituent corporation and
(ii) failed to exercise his rights or election, if any, as to the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer (provided that if the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer is not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, sale or transfer by others than
a constituent corporation or an Affiliate thereof and in respect of which such
rights
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or election shall not have been exercised ("nonelecting share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each
nonelecting share shall be deemed to be the kind and amount as receivable per
share by a plurality of the nonelecting shares). Such supplemental indenture
shall provide for adjustments which, for events subsequent to the effective date
of such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers, sales or transfers.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
UNITED CITES GAS COMPANY
By: /s/ XXXXX X. XXXX
--------------------------------
Title: Senior Vice President and
Treasurer
(SEAL)
ATTEST:
/s/ XXXXXXX X. XXXXXXX
---------------------------
Secretary
BANK OF AMERICA ILLINOIS, Trustee
(SEAL) By /s/ XXXX XXXXXX
---------------------------------
Title: Vice President
ATTEST:
/s/ XX XXXXXXX
----------------------------
Vice President
-00-
XXXXX XX XXXXXXXXX )
) SS:
COUNTY OF XXXXXXXXXX )
On the 15th day of November, 1995, before me personally came Xxxxx X.
Xxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Senior Vice President and Treasurer of United Cities Gas Company, an
Illinois and Virginia corporation, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporation's
seal; that it was so affixed by authority of the Board of' Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ XXXXXX XXXX
-----------------------------------
Notary Public
(NOTARIAL SEAL)
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On the 15th day of November, 1995, before me personally came Xxxx Xxxxxx,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President of Bank of America Illinois, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporation's
seal, that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ XXXXX XXXXX
-----------------------------------
Notary Public
(NOTARIAL SEAL)
Commission Expires: 11-7-98
