EXHIBIT 4.1
================================================================================
NIPSCO CAPITAL MARKETS, INC.
AND
NIPSCO INDUSTRIES, INC.,
TO
THE CHASE MANHATTAN BANK,
as Trustee
-------------------
INDENTURE
Dated as of February 14, 1997
-------------------
Providing for Issuance of Debt Securities
================================================================================
NIPSCO Capital Markets, Inc.
NIPSCO Industries, Inc.
Reconciliation and Tie between Trust Indenture Act of 1939, as amended, and
Indenture, dated as of February 14, 1997
Trust Indenture Indenture
Act Section Section(s)
----------- ----------
(S)310 (a)(1)....................................................609
(a)(2)....................................................609
(a)(3)....................................................Not Applicable
(a)(4)....................................................Not Applicable
(a)(5)....................................................609
(b).......................................................608, 610
(c).......................................................Not Applicable
(S)311 (a).......................................................613
(b).......................................................613
(c).......................................................613
(S)312 (a).......................................................701, 702(a)
(b).......................................................702(a)
(c).......................................................702(b)
(S)313 (a).......................................................703(a)
(b).......................................................703(b)
(c).......................................................703(c)
(d).......................................................703(c)
(S)314 (a).......................................................704
(a)(4)....................................................101, 1009
(b).......................................................Not Applicable
(c)(1)....................................................102
(c)(2)....................................................102
(c)(3)....................................................Not Applicable
(d).......................................................Not Applicable
(e).......................................................102
(f).......................................................Not Applicable
(S)315 (a).......................................................601
(b).......................................................602
(c).......................................................601
(d).......................................................601
(e).......................................................514
(S)316 (a)(1)(A).................................................502, 512
(a)(1)(B).................................................513
(a)(2)....................................................Not Applicable
(b).......................................................508
(c).......................................................104
(S)317 (a)(1)....................................................503
(a)(2)....................................................504
(b).......................................................1003
(S)318 (a).......................................................108
NOTE: This Reconciliation and Tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE Definitions and Other Provisions of General Application....................2
SECTION 101. Definitions.....................................................................2
SECTION 102. Compliance Certificates and Opinions............................................9
SECTION 103. Form of Documents Delivered to Trustee.........................................10
SECTION 104. Acts of Holders; Record Dates..................................................10
SECTION 105. Notices, etc., to Trustee, Company and Industries..............................13
SECTION 106. Notice to Holders of Securities; Waiver........................................13
SECTION 107. Language of Notices, etc.......................................................14
SECTION 108. Conflict with Trust Indenture Act..............................................14
SECTION 109. Effect of Headings and Table of Contents.......................................14
SECTION 110. Successors and Assigns.........................................................15
SECTION 111. Separability Clause............................................................15
SECTION 112. Benefits of Indenture..........................................................15
SECTION 113. Governing Law..................................................................15
SECTION 114. Legal Holidays.................................................................15
SECTION 115. Appointment of Agent for Service...............................................15
SECTION 116. No Adverse Interpretation of Other Agreements..................................16
SECTION 117. Execution in Counterparts......................................................16
ARTICLE TWO Security Forms............................................................16
SECTION 201. Forms Generally................................................................16
SECTION 202. Form of Trustee's Certificate of Authentication................................17
SECTION 203. Securities in Global Form......................................................17
SECTION 204. Form of Legend for Global Securities...........................................18
SECTION 205. Form of Legend for Bearer Securities...........................................18
ARTICLE THREE The Securities and the Support Agreement..................................18
SECTION 301. Amount Unlimited; Issuable in Series...........................................18
SECTION 302. Denominations..................................................................21
SECTION 303. Execution, Authentication, Delivery and Dating.................................21
SECTION 304. Temporary Securities...........................................................24
SECTION 305. Registration, Registration of Transfer and Exchange............................25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...............................28
SECTION 307. Payment of Interest; Interest Rights Preserved.................................29
SECTION 308. Persons Deemed Owners..........................................................31
SECTION 309. Cancellation...................................................................31
SECTION 310. Computation of Interest........................................................32
(i)
SECTION 311. Form of Certification by a Person Entitled to Receive a
Bearer Security............................................................32
SECTION 312. Support Agreement...............................................................33
ARTICLE FOUR Satisfaction and Discharge.................................................33
SECTION 401. Satisfaction and Discharge of Indenture.........................................33
SECTION 402. Application of Trust Money......................................................35
ARTICLE FIVE Remedies...................................................................35
SECTION 501. Events of Default...............................................................35
SECTION 502. Acceleration of Maturity; Rescission and Annulment..............................37
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................38
SECTION 504. Trustee May File Proofs of Claim................................................39
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons.................................................................40
SECTION 506. Application of Money Collected..................................................40
SECTION 507. Limitation on Suits.............................................................41
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest...............................................................41
SECTION 509. Restoration of Rights and Remedies..............................................42
SECTION 510. Rights and Remedies Cumulative..................................................42
SECTION 511. Delay or Omission Not Waiver....................................................42
SECTION 512. Control by Holders of Securities................................................42
SECTION 513. Waiver of Past Defaults.........................................................43
SECTION 514. Undertaking for Costs...........................................................43
SECTION 515. Waiver of Stay or Extension Laws................................................43
ARTICLE SIX The Trustee................................................................44
SECTION 601. Certain Duties and Responsibilities.............................................44
SECTION 602. Notice of Defaults..............................................................45
SECTION 603. Certain Rights of Trustee.......................................................46
SECTION 604. Not Responsible for Recitals or Issuance of Securities..........................47
SECTION 605. May Hold Securities.............................................................47
SECTION 606. Money Held in Trust.............................................................47
SECTION 607. Compensation and Reimbursement..................................................47
SECTION 608. Disqualification; Conflicting Interests.........................................48
SECTION 609. Corporate Trustee Required; Eligibility.........................................48
SECTION 610. Resignation and Removal; Appointment of Successor...............................49
SECTION 611. Acceptance of Appointment by Successor..........................................50
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.....................51
SECTION 613. Preferential Collection of Claims Against Company...............................52
SECTION 614. Appointment of Authenticating Agent.............................................52
(ii)
ARTICLE SEVEN Holders' Lists and Reports by Trustee, Company and Industries..............55
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.......................55
SECTION 702. Preservation of Information; Communications to Holders..........................55
SECTION 703. Reports by Trustee..............................................................55
SECTION 704. Reports by Company and Industries...............................................56
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease.......................57
SECTION 801. Company and Industries May Consolidate, Etc., Only on
Certain Terms..............................................................57
SECTION 802. Successor Corporation Substituted...............................................58
SECTION 803. Assumption by Industries or Subsidiary..........................................58
ARTICLE NINE Supplemental Indentures....................................................58
SECTION 901. Supplemental Indentures without Consent of Holders..............................58
SECTION 902. Supplemental Indentures with Consent of Holders.................................60
SECTION 903. Execution of Supplemental Indentures............................................61
SECTION 904. Effect of Supplemental Indentures...............................................61
SECTION 905. Conformity with Trust Indenture Act.............................................62
SECTION 906. Reference in Securities to Supplemental Indentures..............................62
ARTICLE TEN Covenants..................................................................62
SECTION 1001. Payment of Principal, Premium and Interest.....................................62
SECTION 1002. Maintenance of Office or Agency................................................62
SECTION 1003. Money for Securities Payments to Be Held in Trust..............................63
SECTION 1004. Additional Amounts.............................................................65
SECTION 1005. Corporate Existence............................................................66
SECTION 1006. Maintenance of Properties......................................................66
SECTION 1007. Payment of Taxes and Other Claims..............................................66
SECTION 1008. Restrictions on Liens..........................................................67
SECTION 1009. Statement as to Default........................................................69
SECTION 1010. Waiver of Certain Covenants....................................................69
SECTION 1011. Support Agreement..............................................................69
ARTICLE ELEVEN Redemption of Securities...................................................70
SECTION 1101. Applicability of Article.......................................................70
SECTION 1102. Election to Redeem; Notice to Trustee..........................................70
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..............................70
SECTION 1104. Notice of Redemption...........................................................71
SECTION 1105. Deposit of Redemption Price....................................................71
SECTION 1106. Securities Payable on Redemption Date..........................................72
SECTION 1107. Securities Redeemed in Part....................................................72
(iii)
ARTICLE TWELVE Sinking Funds................................................................73
SECTION 1201. Applicability of Article.......................................................73
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..........................73
SECTION 1203. Redemption of Securities for Sinking Fund......................................74
ARTICLE THIRTEEN Meetings of Holders of Securities............................................74
SECTION 1301. Purposes for Which Meetings May be Called......................................74
SECTION 1302. Call Notice and Place of Meeting...............................................74
SECTION 1303. Persons Entitled to Vote at Meetings...........................................75
SECTION 1304. Quorum; Action.................................................................75
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment
of Meetings..................................................................76
SECTION 1306. Counting Votes and Recording Action of Meetings................................77
SECTION 1307. Action Without Meeting.........................................................77
ARTICLE FOURTEEN Immunity of Incorporators, Stockholders, Officers,
Directors and Employees.....................................................77
SECTION 1401. Liability Solely Corporate......................................................77
EXHIBIT A Support Agreement dated April 4, 1989 as amended as of May 15,
1989, December 10, 1990 and February 14, 1991, between NIPSCO
Industries, Inc. and NIPSCO Capital Markets, Inc.
(iv)
INDENTURE, dated as of February 14, 1997 among NIPSCO Capital Markets,
Inc., a corporation duly organized and existing under the laws of the State of
Indiana (herein called the "Company"), having its principal office at 0000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, NIPSCO Industries, Inc., a corporation
duly organized and existing under the laws of the State of Indiana (herein
called "Industries"), having its principal office at 0000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, and The Chase Manhattan Bank, a corporation duly
organized and existing under the laws of New York, having its principal
corporate trust office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
Trustee (herein called the "Trustee').
RECITALS OF THE COMPANY AND INDUSTRIES
--------------------------------------
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein collectively called
the "Securities", and individually called a "Security"), to be issued in one or
more series as in this Indenture provided.
Industries has duly authorized the execution and delivery of this Indenture
and has previously entered into a Support Agreement, dated April 4, 1989, as
amended as of May 15, 1989, December 10, 1990 and February 14, 1991 (as such
agreement may be hereafter amended, modified or supplemented from time to time
in accordance with its terms and the provisions of this Indenture, the "Support
Agreement"), with the Company, a copy of which (as currently in effect) is
attached hereto as Exhibit A, pursuant to which Industries has agreed to ensure
the timely payment of principal of and premium, if any, and interest on Debt (as
defined in the Support Agreement), provided that no holder of such Debt shall
have recourse against the stock or assets of Northern Indiana Public Service
Company, an Indiana corporation ("Northern Indiana"), or any interest of the
Company or Industries therein.
All things necessary to make this Indenture a valid agreement of the
Company and Industries, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
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:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) 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;
(3) 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;
(4) the words "herein," "hereof," "hereto" 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; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both," not "either A or B but not both").
Certain terms used principally in certain Articles are defined in those
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.
-2-
"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.
"Authorized Newspaper" means a newspaper, in an official language of the
country of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form for Bearer Securities set
forth in Section 203 or established pursuant to Section 201 which is payable to
bearer and shall bear the legend specified in Section 205.
"Board of Directors" means either the board of directors of the Company or
Industries, as the case may be, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company or Industries, as
the case may be, 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 particular location specified
in the Securities or this Indenture, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which state or national banks in such
location are authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the 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 corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Consolidated Net Tangible Assets" means the total amount of assets
appearing on a consolidated balance sheet of Industries and its Subsidiaries
other than the Utilities less, without duplication, the following:
-3-
(a) all current liabilities (excluding any thereof which are by their
terms extendable or renewable at the sole option of the obligor thereon
without requiring the consent of the obligee to a date more than 12 months
after the date of determination);
(b) all reserves for depreciation and other asset valuation reserves
but excluding any reserves for deferred Federal income taxes arising from
accelerated amortization or otherwise;
(c) all intangible assets such as goodwill, trademarks, trade names,
patents and unamortized debt discount and expense carried as an asset on
said balance sheet; and
(d) all appropriate adjustments on account of minority interests of
other Persons holding Common Stock in any Subsidiary.
Consolidated Net Tangible Assets shall be determined in accordance with
generally accepted accounting principles and as of a date not more than 90 days
prior to the happening of the event for which such determination is being made.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee of a series of Securities at which at any particular time its corporate
trust business shall be administered, which office on the date of execution of
this Indenture is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Global Trust Services, except that with respect to presentation of
Securities of a series for payment or for registration of transfer or exchange,
such term shall mean the office or agency of the Trustee of such series at
which, at any particular time, its corporate agency business shall be conducted
which office or agency on the date of execution of this Indenture is located at
00 Xxxxx Xxxxxx, Xxxx 000, Xxx Xxxx, Xxx Xxxx 00000.
"Corporation" includes any corporation, association, company or business
trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, specified for that purpose as contemplated by Section 301 or any
successor clearing agency registered under such Act as contemplated by Section
305, and if at any time there is more than one such Person, "Depositary" as used
with respect to the Securities of any series shall mean the Depositary with
respect to the Securities of such series.
"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.
"Event of Default" has the meaning specified in Section 501.
-4-
"Global Security" means a Security bearing the legend specified in Section
204 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
nominee.
"Holder," when used with respect to any Security, means in the case of a
Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or 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.
"Industries" means the Person named as "Industries'' in the first paragraph
of this instrument until a successor Corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Industries''
shall mean such successor Corporation.
"Interest," when used with respect to an Original Issue 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 becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Northern Indiana" has the meaning stated in the second recital of this
Indenture.
"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, an Assistant Controller, the Corporate Secretary or
an Assistant Corporate Secretary, of the Company or Industries, as the case may
be, that complies with the requirements of Section 314(c) of the Trust Indenture
Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or Industries, as the case may be, and who shall be acceptable
to the Trustee, that complies with the requirements of Section 314(c) of the
Trust Indenture Act.
-5-
"Original Issue 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 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities and any coupons thereto appertaining;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) 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 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 the Holders of the requisite
principal amount of the Outstanding Securities have been given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, Securities
owned by the Company, Industries or any other obligor upon the Securities or any
Affiliate of the Company, Industries or of such other obligor 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. 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,
Industries or any other obligor upon the Securities or any Affiliate of the
Company, Industries or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
-6-
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, limited liability company, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"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.
"Registered Security" means any Security established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Request" or "Order" means a written request or order signed in the name of
the Company or Industries, as the case may be, by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Corporate Secretary or an Assistant
Corporate Secretary, and delivered to the Trustee.
"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 senior trust officer, 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 to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
-7-
"Securities" and "Security" have the meanings stated in the first recital
of this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities," with
respect to any such Person, shall mean Securities authenticated and delivered
under this Indenture, exclusive, however, of Securities of any series as to
which such Person is not Trustee.
"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
Registered 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 or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by Industries or by one or more
other Subsidiaries, or by Industries and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Support Agreement" has the meaning stated in the second recital of this
Indenture.
"Support Obligations" means the obligations of Industries under the Support
Agreement.
"Trust Indenture Act'' means the Trust Indenture Act of 1939, as amended,
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended or
replaced from time to time or as supplemented from time to time by rules or
regulations adopted by the Commission under or in furtherance of the purposes of
such Act or provision, as the case may be.
"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 each 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.
-8-
"Utility" means Northern Indiana, Kokomo Gas and Fuel Company, Northern
Indiana Fuel and Light Company, Inc. and Crossroads Pipeline Company, or any
other public utility Corporation owned, either directly or indirectly, by
Industries.
"United States" means the United States of America (including the States
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"Vice President," when used with respect to the Company, Industries or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company or Industries, as the case
may be, to the Trustee to take any action under any provision of this Indenture,
the Company or Industries, as the case may be, shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, 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:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of 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 complied with; and
-9-
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied 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 or Industries 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 or
Industries, as the case may be, stating that the information with respect to
such factual matters is in the possession of the Company or Industries, as the
case may be, 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.
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; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided in or pursuant to 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. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
made, given or taken by Holders may, alternatively, be embodied in and evidenced
by the record of Holders of Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Securities
duly called and held in accordance with the provisions of Article Thirteen, or a
combination of such instrument or instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company and Industries. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein
-10-
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 601) conclusive in favor of the Trustee, the Company and
Industries, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1306.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to
be given or taken by a Depositary or impair, as between a Depositary and such
holders of beneficial interests, the operation of customary practices governing
the exercise of the rights of the Depositary (or its nominee) as Holder of any
Security.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depositary that
is a Holder of a Global Security, may make, give or take, by a proxy or proxies
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a Depositary that is a
Holder of a Global Security may give its proxy or proxies to the Depositary's
participants or the beneficial owners of interests in any such Global Security,
as the case may be, through such Depositary's standing instructions and
customary practices.
Subject to the next succeeding paragraph, the Company may, in the
circumstances permitted by the Trust Indenture Act, fix any day as the record
date for the purpose of determining the Holders of Securities of any series
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders of Securities of such series. If not
set by the Company prior to the first solicitation of a Holder of Securities of
such series made by any Person in respect of any such action, or in the case of
any such vote, prior to such vote, the record date for any such action or vote
shall be the 30th day prior to such first solicitation or vote, or, if later,
the date of the most recent list of Holders required to be provided pursuant to
Section 701, as the case may be. With regard to any record date for action to
be taken by the Holders of one or more series of Securities, only the Holders of
Securities of such series on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.
The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any permanent Global Security
held by a Depositary and who are entitled under the procedures of such
Depositary to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in or pursuant to this Indenture to be made, given or
taken by Holders. If such a record date is fixed, the Holders on such record
date or their duly appointed proxy or proxies, and
-11-
only such Persons, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action, whether or
not such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other action shall
be valid or effective if made, given or taken more than 90 days after such
record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person executing any such instrument or writing as a Holder of
Securities, and the date of his holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person executing such
instrument or writing as a Holder of Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee, the Company
and Industries may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(e) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same, the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other
reasonable manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, the
Company or Industries in reliance thereon, whether or not notation of such
action is made upon such Security.
-12-
SECTION 105. Notices, etc., to Trustee, Company and Industries.
-------------------------------------------------
Any request, demand, authorization, direction, notice, consent, election,
waiver or other Act of Holders of a series of Securities or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee of such series by any Holder of a Security of such
series or by the Company or Industries shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee of such series at its Corporate Trust Office, or
(2) the Company or Industries, as the case may be, by the Trustee of
such series or by any Holder of a Security of such series shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company or Industries, as the case may be, addressed to the attention of
its Corporate Secretary, at 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, or
at any other address previously furnished in writing to the Trustee of such
series by the Company or Industries, as the case may be.
SECTION 106. Notice to Holders of Securities; Waiver.
---------------------------------------
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities (of any series) of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities of such series if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security of such series affected by
such event, at his address 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; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities of such series if published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and, if the Securities of such
series are then listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London
and, if the Securities of such series are then listed on the Luxembourg
Stock Exchange and such stock exchange shall so require, in Luxembourg and,
if the Securities of such series are then listed on any other stock
exchange outside the United States and such stock exchange shall so
require, in any other required city outside the United States or, if not
practicable, in Europe, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and not later than the
latest date prescribed for the giving of such notice.
-13-
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 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 of Registered Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice by publication to Holders of Bearer Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities of any
series as provided above, then such notification to Holders of such Bearer
Securities as shall be given with the approval of the Trustee for such series
shall constitute sufficient notice to such Holders for every purpose hereunder.
Neither failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as provided
above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities 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. Language of Notices, etc.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
-14-
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and
Industries shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or the Securities or coupons 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 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder and the Holders of Securities and coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 114. 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
or coupons) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that 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.
SECTION 115. Appointment of Agent for Service.
By the execution and delivery of this Indenture, the Company and Industries
hereby appoint the Trustee as their agent upon which process may be served in
any legal action or proceeding which may be instituted in any Federal or State
court in the Borough of Manhattan, The City of New York, arising out of or
relating to the Securities, the coupons or this Indenture. Service of process
upon such agent at the office of such agent at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Global Trust Services (or such other address in the
Borough of Manhattan, The City of New York, as may be the Corporate Trust Office
of the Trustee), and written notice of said service
-15-
to the Company and Industries by the Person serving the same addressed as
provided in Section 105, shall be deemed in every respect effective service of
process upon the Company and Industries in any such legal action or proceeding,
and the Company and Industries hereby submit to the jurisdiction of any such
court in which any such legal action or proceeding is so instituted. Such
appointment shall be irrevocable so long as the Holders of Securities or coupons
shall have any rights pursuant to the terms thereof or of this Indenture until
the appointment of a successor by the Company and Industries with the consent of
the Trustee and such successor's acceptance of such appointment. The Company and
Industries further agree to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of such agent or successor.
By the execution and delivery of this Indenture, the Trustee hereby agrees
to act as such agent and undertakes promptly to notify the Company and
Industries of receipt by it of service of process in accordance with this
Section.
SECTION 116. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company, Industries or any Affiliate of either. No such
indenture, loan or debt agreement may be used to interpret this Indenture.
SECTION 117. Execution in Counterparts.
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.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons and the Global
Securities, if any, issued pursuant to this Indenture shall be in such form as
shall be established by or pursuant to a Board Resolution of the Company or in
one or more 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,
-16-
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If
the forms of Securities or coupons of any series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Corporate Secretary or an Assistant
Corporate Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Order of the Company contemplated by Section 303 for the
authentication and delivery of such Securities or coupons.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article or Article Six.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, the Securities of each series shall be issuable in
global and registered form without coupons. If so provided as contemplated by
Section 301, the Securities of a series also shall be issuable in bearer form,
with or without interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 614, the Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Securities of the series referred to in the within
mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:____________________________________
Authorized Officer
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, any such Security
may provide that it or any number of such Securities shall represent the
aggregate amount of all Outstanding Securities of such series (or such lesser
amount as is permitted by the terms thereof) 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 increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or
-17-
changes in the rights of Holders, 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 Order of the Company to be delivered pursuant to Sections 303
or 304 with respect thereto. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Order of the Company. If the
Order of the Company pursuant to Sections 303 or 304 has been, or simultaneously
is, delivered, any instructions by the Company with respect to a Security in
global form shall be in writing but need not be accompanied by or contained in
an Officers' Certificate and need not be accompanied by an Opinion of Counsel.
SECTION 204. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form, or in such other form that is
acceptable to the Depositary and the Trustee:
"Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
SECTION 205. Form of Legend for Bearer Securities.
Any Bearer Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"Any United States person who holds this Security will be subject to
limitations under the United States income tax laws, including the limitation
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code of 1986, as
amended."
ARTICLE THREE
The Securities and the Support Agreement
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
-18-
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution of the Company, and set forth
in an Officers' Certificate of the Company, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other
series issued by the Company);
(2) any limit upon the aggregate principal amount of the Securities
of the 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 Section 304, 305, 306, 906 or 1107);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or any method 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 Registered Securities on
any Interest Payment Date;
(5) the place or places where the principal of (and premium, if any)
and interest, if any, on Securities of the series shall be payable;
(6) whether Securities of such series may be redeemed, and if so, the
period or periods within which, the price or prices at which and the terms
and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) whether Bearer Securities of the series are to be issuable;
(9) if Bearer Securities of the series are to be issuable, whether
interest in respect of any portion of a temporary Bearer Security in global
form (representing all of the Outstanding Bearer Securities of the series)
payable in respect of an Interest Payment Date prior to the exchange of
such temporary Bearer Security for definitive Securities of the series
shall be paid to any clearing organization with respect to the portion of
such temporary
-19-
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to
the Persons entitled to interest payable on such Interest Payment Date;
(10) the date as of which any Bearer Securities of the series, any
temporary Bearer Security in global form and any Global Securities shall be
dated if other than the date of original issuance of the first Security of
the series to be issued;
(11) the denominations in which Registered Securities of the series,
if any, shall be issuable if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Bearer Securities
of the series, if any, shall be issuable if other than the denomination of
$5,000;
(12) 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 the series shall be payable (if other than the
currency of the United States of America);
(13) if the amount of payments of principal of (and premium, if any)
or interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(15) any Events of Default or covenants of the Company or Industries
pertaining to the Securities of the series;
(16) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a Person who is
a United States Alien in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(17) whether any Securities of the series are to be issuable in whole
or in part in the form of one or more Global Securities and, if so, (a) the
Depositary with respect to such Global Security or Securities and (b) the
circumstances under which beneficial owners of interests in any such Global
Security may exchange such interest for Securities of the same series and
of like tenor and of any authorized form and denomination, and the
circumstances under which any such exchange may occur, if other than as set
forth in Section 305;
-20-
(18) if any of such Securities are to be issued in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents, or conditions; and
(19) any other terms of the series (which terms shall not be
inconsistent with the terms of this Indenture).
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth in
such Officers' Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company setting forth the terms of
the series. Such Board Resolution may provide general terms or parameters for
Securities of such series and may provide that the specific terms of particular
Securities of such series, and the Persons authorized to determine such terms or
parameters, may be determined in accordance with or pursuant to the Order of the
Company referred to in 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 Registered Securities of each series shall be
issuable in denominations of $1,000 or any integral multiple thereof and the
Bearer Securities of each series, if any, shall be issuable in the denomination
of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Corporate Secretary or one of its
Assistant Corporate Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Treasurer or any Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time relevant to the authorization thereof the
proper officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
-21-
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 on behalf
of the Company to the Trustee for authentication by the Trustee together with an
Order of the Company for the authentication and delivery of such Securities, and
the Trustee in accordance with such Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original issuance, a
Bearer Security may be delivered only outside the United States and only if the
Trustee shall have received from the Person entitled to receive such Bearer
Security a certificate in the form required by Section 311; provided, further,
that, with respect to Securities of a series constituting a medium term note
program, the Trustee shall authenticate and deliver Securities of such series
for original issue from time to time in the aggregate principal amount
established for such series pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by an Order
of the Company. The maturity dates, original issue dates, interest rates and
any other terms of the Securities of such series shall be determined by or
pursuant to such Order of the Company and procedures. If provided for in such
procedures, such Order of the Company may authorize authentication and delivery
pursuant to oral instructions from the Company or its duly authorized agent,
which instructions shall be promptly confirmed in writing.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Sections 315(a) through
315(d) of the Trust Indenture Act) shall be fully protected in relying upon:
(a) the Board Resolution of the Company or indenture supplemental
hereto establishing the form of the Securities of that series pursuant to
Section 201 and the terms of the Securities of that series pursuant to
Section 301 (or, in the case of a Board Resolution, pursuant to which such
form and terms are established);
(b) an Officer's Certificate pursuant to Sections 201 and 301 and
complying with Section 102; and
(c) an Opinion of Counsel complying with Section 102 stating,
(i) that the forms of such Securities and coupons, if any,
have been established by or pursuant to a Board Resolution of the
Company or by an indenture supplemental hereto, as permitted by
Section 201 and in conformity with the provisions of this Indenture;
(ii) that the terms of such Securities have been established by
or pursuant to a Board Resolution of the Company or by an indenture
supplemental hereto, as permitted by Sections 201 and 301 and in
conformity with the provisions of this Indenture;
-22-
(iii) that such Securities, together with the coupons, if any,
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Support Agreement and the Indenture, enforceable in
accordance with their respective terms, except to the extent that the
enforcement of such obligations may be subject to bankruptcy laws or
insolvency laws or other similar laws, general principles of equity
and such other qualifications as such counsel shall conclude are
customary or do not materially affect the rights of the Holders of
such Securities;
(iv) that all laws and requirements in respect of the execution
and delivery of the Securities have been complied with; and
(v) such other matters as the Trustee may reasonably request.
With respect to Securities of a series constituting a medium term note
program, the Trustee may conclusively rely on the documents and opinion
delivered pursuant to Sections 201 and 301 and this Section 303, as applicable
(unless revoked by superseding comparable documents or opinions) as to the
authorization of the Board of Directors of any Securities delivered hereunder,
the form thereof and the legality, validity, binding effect and enforceability
thereof.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the documents otherwise required pursuant to
the preceding clauses (a), (b) or (c) prior to or at the time of issuance of
each Security, but such documents shall be delivered prior to or at the time of
issuance of the first Security of such series. After any such first delivery,
any separate Request by the Company that the Trustee authenticate Securities of
such series for original issue will be deemed to be a certification by the
Company that all conditions precedent provided for in this Indenture relating to
authentication and delivery of such Securities continue to have been complied
with.
If such forms or terms have been so established by or pursuant to a Board
Resolution of the Company or by an indenture supplemental hereto as permitted by
Sections 201 and 301, the Trustee shall have the right to decline to
authenticate and deliver any Securities of such series:
(i) if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken;
(ii) if the Trustee in good faith by its board of directors, executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determines
-23-
that such action would expose the Trustee to personal liability to Holders
of any Outstanding series of Securities; or
(iii) if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties and 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 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Global Securities, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Order of the Company with respect to such
series, authenticate and deliver one or more Global Securities in permanent form
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the Outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be registered, if
in registered form, in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear a legend as required by Section 204.
Each Registered Security shall be dated the date of its authentication.
Each Global Security, each Bearer Security and any temporary Bearer Security in
global form shall be dated as of the date specified as contemplated by Section
301.
No Security or related coupon 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 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. Except as permitted by Section 306 or 307, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured and paid or payment duly provided
for have been detached and canceled.
SECTION 304. Temporary Securities.
--------- ----------
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon an Order of the Company the Trustee shall authenticate and
deliver, 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, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and 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. In
the case of Bearer Securities of any series, such temporary Securities may be in
global form, representing all of the outstanding Bearer Securities of such
series.
-24-
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 will cause definitive Securities of that
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
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor (at
an office or agency of the Company in the case of Bearer Securities) a like
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided, further, that no definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security unless the Trustee shall have received
from the Person entitled to receive the definitive Bearer Security a certificate
in the form required by Section 311. Until so exchanged, the temporary
Securities of any series, including temporary Securities in global form, shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at one of its offices or agencies
designated pursuant to Section 1002 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 Registered Securities of each
series and of transfers and exchanges of Registered Securities of such series.
Said office or agency is hereby appointed the security registrar (referred to as
the "Security Registrar") for the purpose of registering Registered Securities
of each series and transfers and exchanges of Registered Securities of such
series as herein provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency in a Place of Payment maintained for such
purpose for such series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, Stated
Maturity and original issue date, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Registered Securities of any series (except a
Global Security representing all or a portion of such series) may be exchanged
for Registered Securities of the same series, Stated Maturity and original issue
date, of any authorized denominations and of like tenor and aggregate principal
amount, upon surrender of the Securities to be exchanged at any such office or
agency.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series, Stated Maturity and
original issue date, of any authorized
-25-
denominations and of like tenor and aggregate principal amount, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series after the close of business at such office or agency
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities 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 Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, to register the transfer of
or to exchange Securities of any series during a period of 15 Business Days
immediately preceding the date notice is given identifying the serial numbers of
the Securities of that series called for redemption, or (ii)
-26-
to issue, to register the transfer of or to exchange any Registered Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series, provided that such Registered Security
shall be immediately surrendered for redemption with written instruction for
payment consistent with the provisions of this Indenture.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 or Sections 304, 306, 906 or 1107 for Securities registered
in the name of, and a transfer of a Global Security of any series may be
registered to, any Person other than the Depositary for such Global Security or
its nominee only if:
(i) such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time
such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and a successor Depositary is
not appointed by the Company within 90 days;
(ii) the Company executes and delivers to the Trustee an Order of
the Company that such Global Security shall be so exchangeable and the
transfer thereof so registrable; or
(iii) there shall have occurred and be continuing an Event of Default
or an event which, with the giving of notice or lapse of time, would
constitute an Event of Default with respect to the Securities of such
series.
Upon the occurrence in respect of any Global Security of any series of any one
or more of the conditions specified in clauses (i), (ii) or (iii) of the
preceding sentence or such other conditions as may be specified as contemplated
by Section 301 for such series, then without unnecessary delay, but in any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such Global
Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged,
such Global Securities shall be surrendered from time to time by the Depositary
and in accordance with instructions given to the Trustee and the Depositary
(which instructions shall be in writing but need not be contained in or
accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Order of the Company with respect thereto
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or in part, for definitive Securities of the same series without service
charge. The Trustee shall authenticate and make available for delivery, in
exchange for each portion of such surrendered Global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such Global Security to be
exchanged which (unless the Securities of the series are
-27-
not issuable both as Bearer Securities and as Registered Securities, in which
case the definitive Securities exchanged for the Global Security shall be
issuable only in the form in which the Securities are issuable, as specified as
contemplated by Section 301) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 Business Days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that (unless otherwise specified as
contemplated by Section 301) no Bearer Security delivered in exchange for a
portion of a Global Security shall be mailed or otherwise delivered to any
location in the United States.
Promptly following any such exchange in part, such Global Security shall be
returned by the Trustee to the Depositary in accordance with the instructions of
the Company referred to above. If a Registered Security is issued in exchange
for any portion of a Global Security after the close of business at the office
or agency where such exchange occurs on (i) any Regular Record Date for such
Security and before the opening of business at such office or agency on the next
Interest Payment Date, or (ii) any Special Record Date for such Security and
before the opening of business at such office or agency on the related proposed
date for payment of interest or Defaulted Interest, as the case may be, interest
shall not be payable on such Interest Payment Date or proposed date for payment,
as the case may be, in respect of such Registered Security, but shall be payable
on such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such Global
Security is payable in accordance with the provisions of this Indenture.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series, Stated Maturity and original issue date, and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon
and (ii) such security or indemnity as may be 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 or coupon has been acquired by a
bona fide purchaser, the Company shall execute and upon its Request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a new Security of the same series, Stated Maturity and original issue date, and
of like tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
-28-
In case any such mutilated, destroyed, lost or stolen Security or coupon
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 or coupon; provided,
however, that payment of principal of (and premium, if any) and any interest on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States; and
provided, further, that, with respect to any such coupons, interest represented
thereby (but not any additional amounts payable as provided in Section 1004),
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
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 expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any mutilated, destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost or stolen Security
and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and any such new Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series and their
coupons, if any, 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 or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Registered 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. Interest, if any, is paid on Bearer Securities to Holders of
coupons. In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
-29-
Any interest on any Registered 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 relevant 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 clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered 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 Registered 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 provided in
this clause. 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 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered 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. The Trustee may, in its discretion, in
the name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publication shall not be a condition precedent to the
establishment of 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 Registered 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 clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
-30-
(2) 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 clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the Person in whose name such Registered Security is
registered as the absolute owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
307) interest 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 any notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon 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.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary (or its nominee) shall have any rights under this
Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever. None of the Company,
the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
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 shall be promptly canceled by the Trustee. The
-31-
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, 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 and
coupons held by the Trustee shall be destroyed and certification of their
destruction delivered to the Company, unless an Order of the Company shall
direct that canceled Securities be returned to the Company.
The repayment of any principal amount of Securities pursuant to such option
of the Holder to require repayment of Securities before their Stated Maturity,
for purposes of this Section 309, shall not operate as a payment, redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
with an Order that such Securities be canceled.
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. Form of Certification by a Person Entitled to Receive a Bearer
Security.
Whenever any provision of this Indenture or the form of Security
contemplates that certification be given by a Person entitled to receive a
Bearer Security, such certification shall be provided substantially in the form
of the following certificate, with only such changes as shall be approved by the
Company:
[Form of Certificate to Be Given By
Person Entitled to Receive Bearer Security]
Certificate
[Name of Security]
This is to certify that the above-captioned Security is not being acquired
by or on behalf of a United States person, or for offer to resell or for resale
to a United States person, or, if a beneficial interest in the Security is being
acquired by a United States person, that such person is a financial institution
or is acquiring through a financial institution and that the Security is held by
a financial institution that has agreed in writing to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder and that such person or
financial institution is not purchasing for offer to resell or for resale within
the United
-32-
States. If this certificate is being provided by a clearing organization, it is
based on statements provided to it by its member organizations. As used herein,
"United States" means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction, and "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof and any estate or trust the income of which is subject to United States
Federal income taxation regardless of its source. If the undersigned is a
dealer, the undersigned agrees to obtain a similar certificate from each person
entitled to delivery of any of the above-captioned Securities in bearer form
purchased from it; provided, however, that, if the undersigned has actual
knowledge that the information contained in such a certificate is false, the
undersigned will not deliver a Security in temporary or definitive bearer form
to the person who signed such certificate notwithstanding the delivery of such
certificate to the undersigned.
We undertake to advise you by telecopy if the above statement as to
beneficial ownership is not correct on the date of delivery of the above-
captioned Securities in bearer form as to all of such Securities.
We understand that this certificate is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
Dated: __________, 19__
SECTION 312. Support Agreement.
Holders of Securities and coupons and the Trustee are entitled to the
benefits of the Support Agreement available to Lenders (as defined in the
Support Agreement), it being understood and agreed that the Securities and
coupons constitute Debt (as defined in the Support Agreement) for purposes of
the Support Agreement.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon a Request of the Company cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for, and any right to receive
additional amounts, as provided in Section 1004), and the Trustee, at
-33-
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(1) either
(A) all Securities theretofore authenticated and delivered and all
coupons appertaining thereto (other than (i) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been waived as
provided in Xxxxxxx 000, (xx) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Xxxxxxx 000, (xxx) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106, and (iv) Securities and
coupons for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (B)(i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust
dedicated solely for such purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
of the Company 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.
-34-
In the event there are Securities of two or more series 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 are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and Industries to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Sections 305,
306, 402, 1002 and 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provision of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee, but such money need not be segregated from other funds, except to the
extent required by law.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of any interest (including
any additional amounts due under Section 1004 as specified therein) upon
any Security of that series when it becomes due and payable and continuance
of such default for a period of 30 days; or
(2) the Company defaults in the payment of the principal (including
any additional amounts due under Section 1004 as specified therein) of (or
premium, if any, on) any Security of that series at its Maturity and
continuance of such default for a period of three Business Days thereafter;
or
-35-
(3) the Company defaults in the deposit of any sinking fund payment
when and as due by the terms of a Security of that series and continuance
of such default for a period of three Business Days thereafter; or
(4) the Company or Industries defaults in the performance or breach
of any covenant or warranty of the Company or Industries, as the case may
be, in this Indenture or the Support Agreement (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in or pursuant to this Indenture solely for the benefit of one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company and Industries by the Trustee,
or to the Company, Industries and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that 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
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series) or under 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
by the Company (including this Indenture), whether such indebtedness now
exists or shall hereafter be created, which default shall constitute a
failure to pay in excess of $5,000,000 of the principal or interest of such
indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto or shall have resulted in such
indebtedness in an amount in excess of $5,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been discharged,
or such acceleration having been rescinded or annulled within a period of
90 days after there shall have been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
of that series a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; provided, however, that, subject to the
provisions of Sections 601 and 602, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer of the
Trustee assigned to Global Trust Services (or any successor division or
department of the Trustee) shall have actual knowledge of such default or
(B) the Trustee shall have received written notice thereof from the
Company, from any Holder, from the holder of any such indebtedness or from
the trustee under any such mortgage, Indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of any of the Company, Industries or
Northern Indiana in an
-36-
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging any of the Company, Industries or Northern Indiana a
bankrupt or insolvent, or approving as properly filed a petition by one or
more Persons other than the Company, Industries, Northern Indiana or any of
their Affiliates seeking reorganization, arrangement, adjustment or
composition of or in respect of any of the Company, Industries or Northern
Indiana under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official for any of the Company, Industries or Northern Indiana or
for any substantial part of the property of any of the Company, Industries
or Northern Indiana, or ordering the liquidation or winding up of the
affairs of any of the Company, Industries or Northern Indiana, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days; or
(7) the commencement by any of the Company, Industries or Northern
Indiana of a 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 it
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 in respect of it or any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or its
admission in writing of its inability to pay its debts generally as they
become due, or its taking of corporate action in furtherance of any such
action; or
(8) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 33% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company and Industries (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by
-37-
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities of that series, by written
notice to the Company, Industries and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company or Industries has paid or deposited with the Trustee
a sum sufficient to pay:
(A) all overdue interest on all Securities of that series;
(B) the principal of (and premium, if any, on) any Securities of
that 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;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the
Trustee under Section 607;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission and annulment shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof and such default continues
for a period of three Business Days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for
-38-
principal (and premium, if any) and interest, with interest on any overdue
principal (and premium, if any) and on any overdue interest, to the extent that
payment of such interest shall be legally enforceable, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due to the Trustee
under Section 607.
If the Company fails 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, Industries (pursuant to its Support Obligations) 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,
Industries (subject to the limitations set forth in the Support Agreement) or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is 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 and any
related coupons 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 the
Support Agreement, or to enforce any other proper remedy.
SECTION 504. 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, Industries or any other obligor
upon the Securities or the property of the Company, Industries or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company, Industries or any other obligor for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest 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 the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee
under Section 607) and of the Holders of Securities and coupons allowed in
such judicial proceeding; and
-39-
(ii) 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 of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture, the Support Agreement
or the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. 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, upon presentation of the Securities or coupons, or both, as
the case may be, 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
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities and
coupons 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 and coupons for principal
(and premium, if any) and interest, respectively; and
-40-
THIRD: To the Company or Industries, as the case may be.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons 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:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series 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;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
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 Indenture or the Support Agreement to affect, disturb or prejudice the
rights of any other of such Holders or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture or the Support Agreement, except in the manner herein or therein
provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, (1) the Holder of
any Security or coupon 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 on such Security or payment of such coupon on
the Stated Maturity or Maturities expressed in such Security or coupon (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; and (2) the Holder of any Security or coupon shall
be considered a Lender (as defined in the Support Agreement) and shall have all
rights of a Lender set forth therein.
-41-
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture or the Support
Agreement and such proceeding has been discontinued or abandoned for any reason,
or has 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,
Industries, the Trustee and the Holders of Securities and coupons shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon 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 of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any 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 that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joined therein; and
-42-
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. 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 and any related coupons waive any past default
hereunder with respect to such series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series; or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon 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
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder of any Security or coupon
for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security or the payment of any coupon 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 515. Waiver of Stay or Extension Laws.
Each of the Company and Industries 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 each of the
Company and
-43-
Industries (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 SIX
The Trustee
SECTION 601. 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 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 has occurred and is continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that:
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
-44-
(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 series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series;
and
(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 Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. 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, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, notice of
all such defaults hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest 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 Securities of such series; and provided, further,
that in the case of any default of the character specified in Section 501(4)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
-45-
SECTION 603. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
coupon, 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 or Industries mentioned herein
shall be sufficiently evidenced by a Request or Order and any resolution of the
Board of Directors of the Company or Industries shall 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 herein 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 of
the Holders of Securities of any series pursuant to this Indenture, unless such
Holders 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, coupon, 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
books, records and premises of the Company or Industries, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
-46-
(h) except as otherwise provided in Section 501(5), 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 Global Trust Services (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.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) and in any coupons shall be taken as the
statements 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, the Support Agreement or of
the Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. 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 605. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any 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 coupons and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with
the Company, Industries or an Affiliate of either with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. 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 with the Company.
SECTION 607. Compensation and Reimbursement.
The Company and Industries agree:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
-47-
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel and any Authenticating Agent),
except any such expense, disbursement or advance as may be attributable to
its negligence, willful misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense 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 and
Industries under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any, or
interest, if any, on particular Securities.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee shall comply with the terms of Section 310(b) of the Trust
Indenture Act. There shall be excluded from the terms of Section 310(b) of the
Trust Indenture Act (i) the Indenture, dated as of December 2, 1992, among the
Company, Industries and Chemical Bank, pursuant to which the Company's Zero
Coupon Notes due 1997 were issued and are outstanding and (ii) the Indenture,
dated as of February 1, 1996, among the Company, Industries and Chemical Bank,
pursuant to which the Company's 7-3/4% Junior Subordinated Deferrable Interest
Debentures, Series A, were issued and are outstanding.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is 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, or any other Person permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000, is subject to supervision or examination by Federal, State or
District of Columbia authority and is not otherwise ineligible under Section
310(a)(5) of the Trust Indenture Act. If such Corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority,
-48-
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.
SECTION 610. 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 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company and
Industries. If the instrument of acceptance by a successor Trustee required by
Section 611 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.
(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, the Company and
Industries.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company and Industries or by any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months; or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company and
Industries 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, (i) the Company and Industries by Board Resolutions may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all other similarly situated Holders, petition any court of competent
jurisdiction for
-49-
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 and Industries, by
Board Resolutions, 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 of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. 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, Industries 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 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company and Industries. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company and
Industries or the Holders of Securities and accepted appointment in the manner
required by Section 611, any Holder of a Security 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 respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such Series are
issuable as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
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 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, Industries 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 and Industries or on the request of the successor
Trustee, such retiring Trustee shall, upon payment of
-50-
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
Industries, 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 and Industries or on
the request of any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its lien provided for
in Section 607, with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company and Industries
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. 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
-51-
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 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company or
Industries (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of Section 311 and any other provision of the Trust
Indenture Act regarding the collection of claims against the Company or
Industries (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of not less than $50,000,000 and subject
to supervision or examination by Federal, State or District of Columbia
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.
-52-
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 termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall (i) mail written notice of such appointment
by first-class mail, postage prepaid, to all Holders of Registered Securities,
if any, of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register, and (ii) if
Securities of the series are issuable as Bearer Securities, publish notice of
such appointment at least once in an Authorized Newspaper in the place where
such successor Authenticating Agent has its principal office if such office is
located outside the United States. 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 Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments in accordance with the
provisions of Section 607.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
-53-
This is one of the Securities of the series referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By_______________________________
As Authenticating Agent
By_______________________________
Authorized Signatory
-54-
ARTICLE SEVEN
Holders' Lists and Reports by Trustee, Company and Industries
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
will furnish or cause to be furnished to the Trustee:
(a) semi-annually, 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 of Securities 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 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
(b) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
Industries nor the Trustee nor any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with Section 312 of the
Trust Indenture Act, 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 312 of the Trust Indenture
Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first May
15 following the first issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture
-55-
Act, a brief report dated as of such May 15 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b) of
the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the manner and
to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
SECTION 704. Reports by Company and Industries.
The Company and Industries, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company or
Industries 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 or
Industries 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 or Industries 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 rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the 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;
(2) 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 and Industries with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
-56-
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company and Industries May Consolidate, Etc., Only on Certain
Terms.
Neither the Company nor Industries shall consolidate with or merge
into any other Corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless:
(1) the Corporation formed by any such consolidation or into which it
is merged or the Person which acquires by conveyance or transfer, or which
leases, its properties and assets substantially as an entirety shall be a
Corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, in the case of the Company, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities; in
the case of the Company or Industries, the performance of every covenant of
this Indenture on the part of the Company or Industries, as applicable; and
in the case of Industries, all the obligations under the Support Agreement
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company or Industries, as applicable, has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease complies
with this Section 801 and that all conditions precedent herein provided for
relating to such transaction have been complied with.
The Company covenants and agrees that if, upon any consolidation or merger
of the Company with or into any other Corporation, or upon any consolidation or
merger of any other Corporation with or into the Company, or upon any sale or
conveyance of all or substantially all of the property and assets of the Company
to any other Corporation, any property of the Company or any Subsidiary or any
indebtedness issued by any Subsidiary owned by the Company or by any Subsidiary
immediately prior thereto would thereupon become subject to any mortgage,
security interest, pledge, lien or other encumbrance not permitted by Section
1008 hereof, the Company, prior to or concurrently with such consolidation,
merger, sale or conveyance, will by indenture supplemental hereto effectively
secure the Securities then Outstanding (equally and ratably with (or prior to)
any other indebtedness of or guaranteed by the Company or such Subsidiary then
entitled thereto) by a direct lien on such property of the Company or any
Subsidiary or such indebtedness issued by a Subsidiary, prior to all liens other
than any theretofore existing thereon.
-57-
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company or Industries with or merger by the
Company or Industries into any other Corporation or any conveyance, transfer or
lease of either the Company's or Industries' properties and assets substantially
as an entirety in accordance with Section 801, the successor Corporation formed
by such consolidation or into which it is merged or 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 or Industries, as applicable,
under this Indenture with the same effect as if such successor Corporation had
been named as the Company or Industries, as applicable, herein, and thereafter,
except in the case of a lease, the predecessor Corporation shall be relieved of
all obligations and covenants under this Indenture, the Securities and, in the
case of Industries, the Support Agreement.
SECTION 803. Assumption by Industries or Subsidiary.
Industries or a Subsidiary may directly 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 (premium, if
any) and interest on all the Securities and any coupons appertaining thereto and
the performance of every covenant of this Indenture on the part of the Company
to be performed or observed. Upon any such assumption, Industries or such
Subsidiary 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
Industries or such Subsidiary had been named as the Company herein and the
Company shall be released from its liability as obligor on the Securities;
provided that, in the case of such assumption by a Subsidiary, the Support
Agreement is modified so that references to the Company and its Debt therein are
changed to, or modified to include, references to such Subsidiary and its Debt
(including the Securities). No such assumption shall be permitted unless
Industries has delivered to the Trustee an Officers' Certificate of Industries
and an Opinion of Counsel for Industries, each stating that such assumption and
supplemental indenture comply with this Article, that all conditions precedent
herein provided for relating to such transaction have been complied with and, in
the event of assumption by a Subsidiary, that Industries' obligations under this
Indenture and the Support Agreement (modified as aforesaid) remain in full force
and effect.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company
and Industries, when authorized by Board Resolutions, and the Trustee, at any
time and from time to time, may
-58-
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Corporation to the Company
or Industries and the assumption by any such successor of the covenants of
the Company or Industries, as the case may be, herein and in the Securities
and coupons; or
(2) to add to the covenants of the Company and Industries for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Company or Industries; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal (or
premium, if any) on Registered Securities or of principal (or premium, if
any) or any interest on Bearer Securities, to permit Registered Securities
to be exchanged for Bearer Securities or to permit the issuance of
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series, to contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of any series as to
which the predecessor Trustee is not retiring shall continue to be vested
in the predecessor Trustee, 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 611(b); or
-59-
(9) 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 such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(10) to effect assumption by Industries or a Subsidiary pursuant to
Section 803; or
(11) to conform this Indenture to any amendments to the Trust
Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company,
Industries and the Trustee, the Company and Industries, when authorized by Board
Resolutions, 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 or modifying
in any manner the rights of the Holders of Securities of such series and any
related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security or coupon affected thereby:
(1) change the Stated Maturity of the principal of, or of any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change the method of calculating
the rate of interest thereon, or change any obligation of the Company to
pay additional amounts pursuant to Section 1004 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502, or change any Place of Payment in the United States where,
or the coin or currency 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
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, 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 certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1304 for quorum or voting;
or
-60-
(3) change any obligation of the Company to maintain an office or
agency in each Place of Payment, or any obligation of the Company to
maintain an office or agency outside the United States pursuant to Section
1002; or
(4) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain 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 of a Security or coupon with respect to changes
in the references to "the Trustee" and concomitant changes in this Section
and Section 1009, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
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 which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities 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.
The Company and Industries shall have the right to set a record date for
the solicitation of any consents under this Article Nine, which record date
shall be set in accordance with Section 104.
SECTION 903. 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 315 of the Trust Indenture Act) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties, immunities or liabilities under
this Indenture or otherwise.
SECTION 904. 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
and of any coupons appertaining thereto shall be bound thereby.
-61-
SECTION 905. 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 906. Reference in Securities to Supplemental Indentures.
Securities of any series 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 so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this Indenture.
Any interest due on Bearer Securities on or before Maturity, other than
additional amounts, if any, payable as provided in Section 1004 in respect of
principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company initially hereby appoints the Trustee, its office or agency for each of
said purposes. If Securities of a series are issuable as Bearer Securities, the
Company will maintain, subject to any laws or regulations applicable thereto, an
office or agency in a Place of Payment for such series which is located outside
the United States where Securities of such series and the related coupons may be
presented and surrendered for
-62-
payment (including payment of any additional amounts payable on Securities of
such series pursuant to Section 1004); provided, however that if the Securities
of such series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent in London or Luxembourg or any other
required city located outside the United States, as the case may be, so long as
the Securities of such series are listed on such exchange. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
additional amounts payable on Bearer Securities of that series pursuant to
Section 1004) at the place specified for the purpose pursuant to Section 301 or,
if no such place is specified, at the main office of the Trustee in London, and
the Company hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, payment
of principal of and any premium and interest in U.S. dollars (including
additional amounts payable in respect thereof) on any Bearer Security may be
made at the Corporate Trust Office of the Trustee in the Borough of Manhattan,
The City of New York if (but only if) payment of the full amount of such
principal, premium, interest or additional amounts at all offices outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series 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
in each Place of Payment in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 1003. 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 any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
-63-
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities 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 will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series 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;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal of (and premium, if any) or interest on the Securities
of that series; and
(3) 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, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Order of
the Company direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms 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 sums.
Any sums 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 on any Security of any series 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 Request of the Company, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security or any coupon appertaining thereto 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
-64-
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 repayment, may at the expense of the
Company cause to be published once in an Authorized Newspaper in each Place of
Payment or mailed to each such Holder, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of any series or any
coupon appertaining thereto additional amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of principal of
(or premium, if any) or interest on, or in respect of, any Security of any
series or any related coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of additional amounts provided for in this Section to the
extent that, in such context, additional amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section and express
mention of the payment of additional amounts (if applicable) in any provisions
hereof shall not be construed as excluding additional amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or the related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
-65-
SECTION 1005. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and its rights (charter and statutory) and franchises.
Subject to Article Eight, (1) Industries will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of its subsidiary Northern Indiana and its rights (charter
and statutory) and franchises and those of Northern Indiana; provided, however,
that Industries shall not be required to preserve any such right or franchise of
Northern Indiana if, in the judgment of Industries, the preservation thereof is
no longer desirable in the conduct of the business of Northern Indiana and the
loss thereof would not be disadvantageous in any material respect to the Holders
of Securities, and (2) Industries will continue to own, directly or indirectly,
all of the outstanding common stock of Northern Indiana.
SECTION 1006. Maintenance of Properties.
Each of the Company and Industries will cause all properties used or useful
in the conduct of its business, and Industries will cause all properties used or
useful in the business of the Subsidiaries, to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent Industries from discontinuing the operation or maintenance of any of
such properties or disposing of them if such discontinuance or disposal is, in
the judgment of Industries, desirable in the conduct of its business or the
business of the Subsidiaries and not disadvantageous in any material respect to
the Holders of Securities.
SECTION 1007. Payment of Taxes and Other Claims.
Each of the Company and Industries will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon it and, in the case
of Industries, any of the Subsidiaries, or upon the income, profits or property
of the Company, Industries or any of the Subsidiaries, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company, Industries or any of the Subsidiaries;
provided, however, that none of the Company, Industries or any of the
Subsidiaries shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
-66-
SECTION 1008. Restrictions on Liens.
(a) So long as any Securities remain outstanding, neither the Company nor
Industries will, nor will Industries permit any Subsidiary other than a Utility
to, issue, assume or guarantee any debt for money borrowed (hereinafter in this
Section 1008 referred to as "Debt"), secured by any mortgage, security interest,
pledge, lien or other encumbrance (hereinafter in this Section 1008 called
"mortgage" or "mortgages") upon any property of the Company, Industries or any
such Subsidiary (other than a Utility), except indebtedness issued by any such
Subsidiary and owned by Industries or any other such Subsidiary (whether such
property or indebtedness is now owned or hereafter acquired), without in any
such case effectively securing, prior to or concurrently with the issuance,
assumption or guarantee of any such Debt, the Securities (together with, if the
Company shall so determine, any other indebtedness of or guaranteed by the
Company, Industries or such Subsidiary ranking equally with the Securities and
then existing or thereafter created) equally and ratably with (or prior to) such
Debt; provided, however, that the foregoing restrictions shall not apply to nor
prevent the creation or existence of:
(i) mortgages on any property, acquired, constructed or improved by
Industries or any of the Subsidiaries other than the Utilities after the
date of this Indenture which are created or assumed contemporaneously with,
or within 120 days after, such acquisition or completion of such
construction or improvement, or within six months thereafter pursuant to a
firm commitment for financing arranged with a lender or investor within
such 120-day period, to secure or provide for the payment of all or any
part of the purchase price of such property or the cost of such
construction or improvement incurred after the date of this Indenture, or,
in addition to mortgages contemplated by clauses (ii) and (iii) below,
mortgages on any property existing at the time of acquisition thereof,
provided that the mortgages shall not apply to any property theretofore
owned by Industries or any such Subsidiary other than, in the case of any
such construction or improvement, any theretofore unimproved real property
on which the property so constructed or the improvement is located;
(ii) existing mortgages on any property or indebtedness of a
corporation which is merged with or into or consolidated with Industries or
a Subsidiary;
(iii) mortgages on property or indebtedness of a corporation existing
at the time such corporation becomes a Subsidiary;
(iv) mortgages to secure Debt of a Subsidiary to Industries or to
another Subsidiary other than a Utility;
(v) mortgages in favor of the United States of America, any State,
any foreign country or any department, agency or instrumentality or
political subdivision of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract
-67-
or statute or to secure any indebtedness incurred for the purpose of
financing all or any part of the purchase price of the cost of constructing
or improving the property subject to such mortgages, including, without
limitation, mortgages to secure Debt of the pollution control or industrial
revenue bond type;
(vi) mortgages to secure loans to Industries or any Subsidiary other
than a Utility maturing within 12 months from the creation thereof and made
in the ordinary course of business;
(vii) mortgages on any property (including any natural gas, oil or
other mineral property) to secure all or part of the cost of exploration,
drilling or development thereof or to secure Debt incurred to provide funds
for any such purpose;
(viii) mortgages existing on the date of this Indenture; and
(ix) mortgages for the sole purposes of extending, renewing or
replacing in whole or in part Debt secured by any mortgage referred to in
the foregoing clauses (i) to (viii), inclusive, or this clause (ix);
provided, however, that the principal amount of Debt secured thereby shall
not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property or
indebtedness which secured the mortgage so extended, renewed or replaced
(plus improvements on such property).
(b) The provisions of subsection (a) of this Section 1008 shall not apply
to the issuance, assumption or guarantee by Industries or any Subsidiary of Debt
secured by a mortgage which would otherwise be subject to the foregoing
restrictions up to an aggregate amount which, together with all other Debt of
Industries and the Subsidiaries other than the Utilities secured by mortgages
(other than mortgages permitted by subsection (a) of this Section 1008 which
would otherwise be subject to the foregoing restrictions), does not at the time
exceed 5% of Consolidated Net Tangible Assets.
(c) If at any time Industries or any Subsidiary other than the Utilities
shall issue, assume or guarantee any Debt secured by any mortgage and if
subsection (a) of this Section 1008 requires that the Securities be secured
equally and ratably with such Debt, the Company will promptly deliver to the
Trustee:
(i) an Officers' Certificate stating that the covenant of the Company
contained in subsection (a) of this Section has been complied with; and
-68-
(ii) an Opinion of Counsel to the effect that such covenant has been
complied with, and that any instruments executed by the Company in the
performance of such covenant comply with the requirements of such covenant.
SECTION 1009. Statement as to Default.
(a) Each of the Company and Industries will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date
hereof, a certificate, signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company or Industries,
as the case may be, stating whether or not to the best knowledge of the signers
thereof the Company or Industries, as the case may be, is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company or Industries shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
(b) The Company or Industries, as applicable, will deliver to the Trustee,
within five days after the occurrence thereof, written notice of any event which
after notice or lapse of time would become an Event of Default pursuant to
clause (4) of Section 501.
SECTION 1010. Waiver of Certain Covenants.
The Company and Industries may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 1006 and 1007 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and Industries and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
SECTION 1011. Support Agreement.
Each of the Company and Industries covenants and agrees for the benefit of
each series of Securities that (1) it will perform its respective obligations
under the Support Agreement, and (2) it will not agree to any amendment or
termination of the Support Agreement as in effect on the date of this Indenture,
except in accordance with the terms of the Support Agreement as in effect on the
date of this Indenture.
-69-
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article.
Securities of any series 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 any series)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
all of the Securities of any series, the Company shall, at least 60 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. In case of any redemption at the election of the Company of less than all
the Securities of any series, the Company shall, at least 60 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 Securities of such series to be redeemed. In
the case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (ii) 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 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series (other than Securities of such series held by the Company), 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 that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series. Unless otherwise provided in the Securities of a
series, partial redemptions must be in an amount not less than $1,000,000
principal amount of Securities.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
-70-
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
to the Holders of Securities to be redeemed not less than 30 nor more than 60
days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) 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,
(5) the place or places where such Securities, together in the case
of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company 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 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and
-71-
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest, if any, on, all the Securities which are to be redeemed on that date.
SECTION 1106. 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 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 the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002); and provided, further, that installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside of the United States except
as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. 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 with
respect to any Registered Security,
-72-
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 deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series, Stated Maturity and of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Except as otherwise specified as contemplated by Section 301, if a Global
Security is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the Depositary in global form, without service
charge, a new Global Security or Securities of the same series, Stated Maturity
and of any authorized denomination as requested by the Depositary, in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Global Security so surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series 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
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for
-73-
by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and stating the basis for such credit and that such
Securities have not previously been so credited and will also deliver to the
Trustee any Securities to be so delivered. 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
1103 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 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series 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.
SECTION 1302. Call Notice and Place of Meeting.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, 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.
-74-
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series 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 made the first publication of 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 in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company, Industries and
each of their respective counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, 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(d), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once 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 which shall constitute a quorum.
Except as limited by the proviso to Section 902, 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 principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
-75-
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series 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 that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) 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 of such series in regard to proof of the holding of
Securities of such series 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.
(b) 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 of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; 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 of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote
-76-
a majority in principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned without
further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series 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,
Directors and Employees
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, director or employee,
as such, past, present or future of the Company or Industries or of any
predecessor or successor Corporation (either directly or through the Company,
Industries or a predecessor or successor Corporation of
-77-
either of them), whether by virtue of any constitutional provision, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and all the Securities
are solely corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, stockholder, officer,
director or employee, past, present or future, of the Company or Industries or
of any predecessor or successor Corporation of either of them, either directly
or indirectly through the Company, Industries or any predecessor or successor
Corporation of either of them, because of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or agreements contained
in this Indenture or in any of the Securities or 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; provided, however, that
nothing in this Section 1401 shall be interpreted to relieve Industries of its
corporate obligations set forth in this Indenture by virtue of it being a
stockholder of the Company.
--------------------
-78-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
NIPSCO Capital Markets, Inc.
[SEAL] By:
--------------------------------
Name: Xxxxxxx X. Adik
Attest: Title: President
----------------------
NIPSCO Industries, Inc.
[SEAL] By:
--------------------------------
Name: Xxxxxxx X. Adik
Attest: Title: Executive Vice President and
Chief Financial Officer
----------------------
The Chase Manhattan Bank, as Trustee
[SEAL] By:
--------------------------------
Name:
Attest: Title: Senior Trust Officer
By:
------------------
-79-
