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EXHIBIT 4(e)
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PORTLAND GENERAL ELECTRIC COMPANY
TO
HSBC BANK USA
TRUSTEE
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INDENTURE
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Dated as of April 30, 1999
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PORTLAND GENERAL ELECTRIC COMPANY
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE OF THE
TRUST INDENTURE ACT OF 1939:
Trust Indenture Indenture
Act Section Section
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Section 310(a)(1) .......................................................... 609
(a)(2) .......................................................... 609
(a)(3) .......................................................... Not Applicable
(a)(4) .......................................................... Not Applicable
(b) .......................................................... 608
.......................................................... 610
Section 311(a) .......................................................... 613
(b) .......................................................... 613
Section 312(a) .......................................................... 701
.......................................................... 702(a)
(b) .......................................................... 702(b)
(c) .......................................................... 702(c)
Section 313(a) .......................................................... 703(a)
(b) .......................................................... 703(a)
(c) .......................................................... 703(a)
(d) .......................................................... 703(b)
Section 314(a) .......................................................... 704
(a)(4) .......................................................... 101
.......................................................... 1004
(b) .......................................................... Not Applicable
(c)(1) .......................................................... 102
(c)(2) .......................................................... 102
(c)(3) .......................................................... Not Applicable
(d) .......................................................... Not Applicable
(e) .......................................................... 102
Section 315(a) .......................................................... 601
(b) .......................................................... 602
(c) .......................................................... 601
(d) .......................................................... 601
(e) .......................................................... 514
Section 316(a) .......................................................... 101
(a)(1)(A) .......................................................... 502
.......................................................... 512
(a)(1)(B) .......................................................... 513
(a)(2) .......................................................... Not Applicable
(b) .......................................................... 508
(c) .......................................................... 104(c)
Section 317(a)(1) .......................................................... 503
(a)(2) .......................................................... 504
(b) .......................................................... 1003
Section 318(a) .......................................................... 107
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Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions................................................1
Act .......................................................2
Affiliate.......................................................2
Authenticating Agent............................................2
Board of Directors..............................................2
Board Resolution................................................2
Business Day....................................................2
Commission......................................................2
Company .......................................................2
Company Request" or "Company Order..............................2
Corporate Trust Office..........................................2
corporation.....................................................3
Defaulted Interest..............................................3
Depository......................................................3
Eligible Obligations............................................3
Event of Default................................................3
Federal Bankruptcy Act..........................................3
Global Security.................................................3
Holder .......................................................3
indebtedness....................................................3
Indenture.......................................................4
interest .......................................................4
Interest Payment Date...........................................4
Lien .......................................................4
Maturity .......................................................4
Officers' Certificate...........................................4
Opinion of Counsel..............................................4
Original Issue Discount Security................................4
Outstanding.....................................................5
Paying Agent....................................................5
Person .......................................................6
Place of Payment................................................6
Predecessor Security............................................6
Redemption Date.................................................6
Redemption Price................................................6
Regular Record Date.............................................6
Responsible Officer.............................................6
Securities......................................................6
Security Register" and "Security Registrar......................6
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Special Record Date.............................................6
Stated Maturity.................................................6
Subsidiary......................................................7
Tax-Free Debt...................................................7
Trustee .......................................................7
Trust Indenture Act.............................................7
U.S. Government Obligations.....................................7
Vice President..................................................7
SECTION 102. Compliance Certificates and Opinions.......................8
SECTION 103. Form of Documents Delivered to Trustee.....................8
SECTION 104. Acts of Holders; Record Dates..............................9
SECTION 105. Notices, Etc., to Trustee and Company.....................10
SECTION 106. Notice to Holders; Waiver.................................10
SECTION 107. Conflict with Trust Indenture Act.........................10
SECTION 108. Effect of Headings and Table of Contents..................11
SECTION 109. Successors and Assigns....................................11
SECTION 110. Separability Clause.......................................11
SECTION 111. Benefits of Indenture.....................................11
SECTION 112. Governing Law.............................................11
SECTION 113. Interest Limitation.......................................11
SECTION 114. Legal Holidays............................................12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally...........................................12
SECTION 202. Form of Face of Security..................................13
SECTION 203. Form of Reverse of Security...............................15
SECTION 204. Form of Legend for Global Securities......................18
SECTION 205. Form of Legend for Global Securities......................18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................19
SECTION 302. Denominations.............................................21
SECTION 303. Execution, Authentication, Delivery and Dating............21
SECTION 304. Temporary Securities......................................22
SECTION 305. Registration, Registration of Transfer and Exchange.......23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........24
SECTION 307. Payment of Interest; Interest Rights Preserved............25
SECTION 308. Persons Deemed Owners.....................................26
SECTION 309. Cancellation..............................................26
SECTION 310. Computation of Interest...................................27
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............................27
SECTION 402. Application of Trust Money.........................................28
SECTION 403. Reinstatement......................................................28
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default..................................................29
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................30
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee....31
SECTION 504. Trustee May File Proofs of Claim...................................32
SECTION 505. Trustee May Enforce Claims Without Possession of Securities........32
SECTION 506. Application of Money Collected.....................................33
SECTION 507. Limitation on Suits................................................33
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest...........................................................34
SECTION 509. Restoration of Rights and Remedies.................................34
SECTION 510. Rights and Remedies Cumulative.....................................34
SECTION 511. Delay or Omission Not Waiver.......................................35
SECTION 512. Control by Holders.................................................35
SECTION 513. Waiver of Past Defaults............................................35
SECTION 514. Undertaking for Costs..............................................36
SECTION 515. Waiver of Stay or Extension Laws...................................36
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................................36
SECTION 602. Notice of Defaults.................................................36
SECTION 603. Certain Rights of Trustee..........................................37
SECTION 604. Not Responsible for Recitals or Issuance of Securities.............38
SECTION 605. May Hold Securities................................................38
SECTION 606. Money Held in Trust................................................38
SECTION 607. Compensation and Reimbursement ....................................39
SECTION 608. Disqualification; Conflicting Interests............................39
SECTION 609. Corporate Trustee Required; Eligibility............................40
SECTION 610. Resignation and Removal; Appointment of Successor..................40
SECTION 611. Acceptance of Appointment by Successor.............................41
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.......42
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SECTION 613. Preferential Collection of Claims Against Company....................43
SECTION 614. Appointment of Authenticating Agent..................................43
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders............44
SECTION 702. Preservation of Information; Communications to Holders...............45
SECTION 703. Reports by Trustee...................................................45
SECTION 704. Reports by Company...................................................45
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
SECTION 801. Consolidation, Merger or Sale Permitted Under Certain Conditions.
.....................................................................46
SECTION 802. Substitution of Successor Person for the Company.....................46
SECTION 803. Opinion of Counsel and Officers' Certificate to be given to Trustee..47
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...................47
SECTION 902. Supplemental Indentures with Consent of Holders......................48
SECTION 903. Execution of Supplemental Indentures.................................49
SECTION 904. Effect of Supplemental Indentures....................................50
SECTION 905. Conformity with Trust Indenture Act..................................50
SECTION 906. Reference in Securities to Supplemental Indentures...................50
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest..........................50
SECTION 1002. Maintenance of Office or Agency.....................................50
SECTION 1003. Money for Securities Payments to Be Held in Trust...................51
SECTION 1004. Corporate Existence.................................................52
SECTION 1005. Maintenance of Properties...........................................52
SECTION 1006. Payment of Taxes and Other Claims...................................52
SECTION 1007. Statement by Officers as to Default.................................52
SECTION 1008. Waiver of Certain Covenants.........................................52
SECTION 1009. Negative Pledge and Exceptions Thereto..............................53
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...........................................55
SECTION 1102. Election to Redeem; Notice to Trustee..............................55
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..................55
SECTION 1104. Notice of Redemption...............................................56
SECTION 1105. Deposit of Redemption Price........................................56
SECTION 1106. Securities Payable on Redemption Date..............................56
SECTION 1107. Securities Redeemed in Part........................................57
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article...........................................57
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..............57
SECTION 1203. Redemption of Securities for Sinking Fund..........................58
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1301. Liability Solely Corporate.........................................58
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INDENTURE, dated as of April 30, 1999, between PORTLAND GENERAL
ELECTRIC COMPANY, a corporation duly organized and existing under the laws of
the State of Oregon (herein called the "Company"), having its principal office
at 000 X.X. Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000, and HSBC Bank USA, a banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee"), the office of the Trustee at which at
the date hereof its corporate trust business is principally administered being
000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a 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, 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 at the date of
such computation; and
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(4) the words "herein", "hereof' and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," means any Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York, New York or
the Place of Payment for the Securities 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, 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 corporation named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust business
with respect to this Indenture shall be administered, which office at the date
hereof is that indicated in the introductory paragraph of this Indenture.
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"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" 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, the Person designated as Depository for such series by the Company
pursuant to Section 301.
"Eligible Obligations" means interest-bearing obligations as a result
of the deposit of which the Securities are rated in the highest generic
long-term debt rating category assigned to legally defeased debt by one or more
nationally recognized rating agencies.
"Event of Default" has the meaning specified in Section 501.
"Federal Bankruptcy Act" means the Bankruptcy Code of 1978, as amended,
or Title 11 of the United States Code.
"Global Security" means a Security bearing the legend specified in
Section 204 evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"indebtedness," as applied to the Company or any Subsidiary, shall mean
bonds, debentures, notes and other instruments representing obligations created
or assumed by any such Person for the repayment of money borrowed (other than
unamortized debt discount or premium). All indebtedness secured by a Lien upon
property owned by the Company or any Subsidiary and upon which indebtedness any
such Person customarily pays interest, although any such Person has not assumed
or become liable for the payment of such indebtedness, shall for all purposes
hereof be deemed to be indebtedness of any such Person. All indebtedness for
money borrowed incurred by other Persons which is directly guaranteed as to
payment of principal by the Company or any Subsidiary shall for all purposes
hereof be deemed to be indebtedness of any such Person, but no other contingent
obligation of any such Person in respect of indebtedness incurred by other
Persons shall for any purpose be deemed indebtedness of such Person.
Indebtedness of the Company or any Subsidiary shall not include (i) any amount
representing capitalized lease obligations; (ii) indirect guarantees or other
contingent obligations in connection with the indebtedness of others, including
agreements, contingent or otherwise, with such other Persons or with third
Persons with respect to, or to permit or ensure the payment of, obligations of
such other Persons, including, without limitation, agreements to purchase or
repurchase obligations of such other Persons, agreements to advance or supply
funds to or to invest in such other Persons, or agreements to pay for property,
products, or services of such other Persons (whether or not conferred, delivered
or rendered), and any demand charge, throughput, take-or-pay, keep-well,
make-whole, cash deficiency, maintenance of working capital or earnings or
similar agreements; and (iii) any guarantees with respect to lease or other
similar periodic payments to be made by other Persons.
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"Indenture" means this instrument as originally executed 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, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that if at any
time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean with respect to any one or more series of Securities for
which such Person is Trustee, 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
and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"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.
"Lien" means any mortgage, pledge, lien, security interest or similar
charge or encumbrance.
"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.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be acceptable to the
Trustee.
"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.
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"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; 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 or Authenticating Agent proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such security, and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company 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 a Responsible Officer of 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 or ally other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any one or more series of Securities
on behalf of the Company.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
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 any premium 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.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this instrument, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this instrument and shall more particularly mean
Securities authenticated and delivered under this instrument, 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 means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
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"Subsidiary" means a Person other than an individual more than 50% of
the outstanding voting power of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting power" means
power for the election of directors or other persons managing the affairs of
such Person, whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Tax-Free Debt" means indebtedness of the Company or a Subsidiary to a
state, territory or possession of the United States or any political subdivision
thereof issued in a transaction in which such state, territory, possession or
political subdivision issued obligations the interest on which is excludable
from gross income pursuant to the provisions of Section 103 of the Internal
Revenue Code of 1986, as amended, or any federal statute hereafter enacted which
relates to such matters, as in effect at the time of issuance of such
obligations, and debt to a bank issuing a letter of credit with respect to the
principal of or interest on such obligations.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "'Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligations evidenced by such depository receipt.
"Vice President", when used with respect to the Company 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".
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other set forth in this
Indenture.
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,
such individual has made such examination or investigation as is
necessary to enable such individual to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(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 may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be 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 agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) 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 (or, if
later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or
vote, 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.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, 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
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therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. 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
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.
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.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the provision of the Trust Indenture Act shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.
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SECTION 108. 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.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Interest Limitation.
It is the intention of the Company to conform strictly to all
applicable usury laws and any subsequent revisions, repeals or judicial
interpretations thereof. Accordingly, if the transactions contemplated hereby
would be usurious under any applicable law then, in that event, notwithstanding
anything to the contrary in the Securities or this Indenture, it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest under
applicable law with respect to a Security shall under no circumstances exceed
the maximum amount allowed by applicable law, and any excess shall be credited
to the principal amount of such Security (or, if the principal amount of such
Security shall have been paid in full, refunded to the Company), to the extent
permitted hy applicable law, and (ii) in the event that the maturity of any
Security is accelerated or in the event of any redemption of such Security, then
such consideration that constitutes interest under applicable law may never
include more than the maximum amount allowed by applicable law, and any excess
shall be credited to the principal amount of such Security (or, if the principal
amount of such Security shall be paid in full, refunded to the Company), to the
extent permitted by applicable law. All calculations made to compute the rate of
interest with respect to a Security for the purpose of determining whether such
rate exceeds the maximum amount allowed by applicable law shall be made, to the
extent permitted by such applicable law, by allocating and spreading during the
period of the full stated term of such Security all interest any time contracted
for, taken, reserved, charged
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or received by such Holder or by the Trustee on behalf of any such Holder in
connection therewith so that the amount or rate of interest charged for any and
all periods of time during the term of the Security does not exceed the maximum
amount or rate of interest allowed to be charged by law during the relevant
period of time. Notwithstanding any of the foregoing, if at any time applicable
laws shall be changed so as to permit a higher rate or amount of interest to be
charged than that permitted prior to such change, then unless prohibited by law,
references in this Indenture or any Security to "applicable law" when used in
the context of determining the maximum interest or rate of interest that can be
charged shall be deemed to refer to such applicable law as so amended to allow
the greater amount or rate of interest.
The right to accelerate maturity of any Security does not include the
right to accelerate any interest which has not otherwise accrued to the date of
such acceleration, provided, however, that the foregoing shall not prohibit the
continuing accrual after acceleration of interest in accordance with the terms
of the Indenture and such Security.
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
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be 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
payment on such succeeding Business Day shall not include interest accrued for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution 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 any applicable law
or any applicable rule or regulation promulgated thereunder, with the rules of
any securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities. Any form of Security approved by or pursuant to a Board Resolution
shall be acceptable as to form
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to the Trustee, such acceptance to be evidenced by the Trustee's authentication
of Securities in that form or a certificate signed by a Responsible Officer of
the Trustee and delivered to the Company.
The definitive Securities 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.
SECTION 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert --- FOR
PURPOSES XX XXXXXXXX 0000, 0000 XXX 0000 XX XXX XXXXXX XXXXXX INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY
IS .............% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS
...................................., 19...[,] [AND] THE YIELD TO MATURITY IS
................%[, THE METHOD USED TO DETERMINE THE YIELD IS
...................... AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO
THE SHORT ACCRUAL PERIOD OF .............................., 19.... TO
................................, 19.... IS ..............% OF THE PRINCIPAL
AMOUNT OF THIS SECURITY].
PORTLAND GENERAL ELECTRIC COMPANY
[INSERT TITLE OF SECURITIES]
No. ................ $....................
Portland General Electric Company, a corporation duly organized and
existing under the laws of the State of Oregon (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
..........................., or registered assigns, the principal sum of
............. Dollars on .................................. [If the Security is
to bear interest prior to Maturity, insert - , and to pay interest thereon from
............ or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on .................... and
..................... in each year, commencing ..................., at the rate
of ..............% per annum, until the principal hereof is paid or made
available for payment [if applicable, insert - , and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of
.............% per annum on any overdue principal and premium and on any overdue
installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
described on the reverse hereof, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be
.................. or .................... (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than
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10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of .................% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ......................% per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to the
date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
the City of New York, State of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert - ; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PORTLAND GENERAL ELECTRIC COMPANY
By
-------------------------------
Attest: Title:
------------------------
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SECTION 203. Form of Reverse of Security.
This security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _____________, 1999 (herein called the
"Indenture"), between the Company and HSBC Bank USA, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to $.................].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ...................... in any year commencing with the year
................. and ending with the year ................. through operation
of the sinking fund for this series at a Redemption Price equal to
.............% of the principal amount, and (2)] at any time [on or after
....................., 19....], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before .............................,
...........%, and if redeemed] during the 12-month period beginning
........................... of the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ----- ---- -----
and thereafter at a Redemption Price equal to ...................% of the
principal amount, together in the case of any such redemption [if applicable,
insert - (whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year ........... and ending with the year
............. through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ....................], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set
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forth in the table below: If redeemed during the 12-month period beginning
................... of the years indicated,
REDEMPTION PRICE FOR REDEMPTION PRICE FOR
REDEMPTION THROUGH REDEMPTION OTHERWISE
OPERATION OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
---- -------------------- ----------------------
and thereafter at a Redemption Price equal to ............% of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Company may
not, prior to ............, redeem any Securities of this series as contemplated
by [Clause (2) of] the preceding paragraph as a part of, or in anticipation of,
any refunding operation by the application, directly or indirectly, of moneys
borrowed having all interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ...........% per annum.]
[If applicable, insert -The sinking fund for this series provides for
the redemption on ............................ in each year beginning with the
year and ending with the year .............. of [not less than]
$......................... [("mandatory sinking fund") and not more than
$........................] aggregate principal amount of Securities of this
series. [Securities of this series acquired or redeemed by the Company otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made [in
the [describe order] in which they become due].]
[If the Security is subject to redemption, insert - In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert -
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the
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Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount shall be equal to - insert
formula for determining the amount. Upon payment of (i) the amount of principal
so declared due and payable and (ii) interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of more than 50% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange here for or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of the Company on this Security upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall, without the consent of the Holder, alter or impair
the right of the Holder, which is absolute and unconditional, to receive payment
of principal of and any premium and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed, except for
Section 113 of the Indenture (which limits interest to the maximum amount
permissible by law), the provisions of which are incorporated herein by
reference.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $.............. and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
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No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable
for Securities registered in the name of a Person other than the
Depository or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a
transfer of this Security as a whole by the Depository to a nominee of
the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such
nominee of the Depository to a successor Depository or a nominee of
such successor Depository) may be registered except in such limited
circumstances."
SECTION 205. Form of Legend for Global Securities.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
HSBC Bank USA
as Trustee
By ...........................................
Authorized Signatory
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, 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 any other
series);
(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
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) The Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
(4) the date or dates on which the principal of and any
premium on the Securities of the series is payable,
(5) the rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at which the
Securities of the series shall bear interest, if any, the date or dates
from which such interest shall accrue, or the method by which such date
or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date,
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) 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, if
the Company is to have that option;
(8) the obligation, if any, and the option, if any, of the
Company to redeem, purchase or repay 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
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price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation or option;
(9) if other than denominations of $ 1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable,
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(12) If the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(13) 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 or provable in bankruptcy pursuant to Section
504 or the method by which such portion shall be determined;
(14) any trustees, paying agents, transfer agents or
registrars with respect to Securities of such series;
(15) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more Global
Securities and, in such case, (a) the Depository with respect to such
Global Security or Securities, which Depository at the time of
designation and at all times while it serves as Depository shall be a
clearing agency registered under the Securities Exchange Act of 1934,
as amended; and (b) the circumstances under which any such Global
Security may be exchanged for Securities registered in the name of, and
any transfer of such Global Security may be registered to, a Person
other than such Depository or its nominee, if other than as set forth
in Section 305; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
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All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and set forth, or determined in the
manner provided, in the Officers' Certificate referred to above 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, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities of each series shall be executed on behalf of the
Company by its Chairman of the Board, a Vice Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate, Board
Resolution, supplemental indenture or Opinion of Counsel otherwise required
pursuant to Sections 102, 201 or 301 or the Company Order otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
A Company Order, Officer's Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any,
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established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic, electronic, or written order of Persons designated in such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution (any
such telephonic or electronic instructions to be promptly confirmed in writing
by such Persons) and that such Persons are authorized to determine, consistent
with such Company Order, Officers' Certificate, supplemental indenture or Board
Resolution, such terms and conditions of said Securities as are specified in
such Company Order, Officers' Certificate, supplemental indenture or Board
Resolution.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee 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. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
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 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.
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 the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept a register for each series of
Securities (the registers so maintained being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein provided
shall be either the Company or such other Person as the Company may appoint,
including the Trustee.
In no case shall there be more than one Security Register for a series
of Securities. If the Trustee shall at any time not be authorized to keep and
maintain the Security Register with respect to any series of Securities, the
Trustee shall have the right to inspect the Security Register for such series of
Securities at all reasonable times and to rely conclusively upon a certificate
of the Person in charge of such Security Register as to the names and addresses
of the Holders of the Securities and the principal amounts and numbers of such
Securities so held.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that 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 Securities of
the same series, of any authorized denominations and of a like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) 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, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer
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of or exchange any Security so selected for redemption in whole or in part
except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the names of, and a transfer of
a Global Security of any series may be registered to, any Person other than the
Depository for such Security or its nominee only if (i) such Depository notifies
the Company that it is unwilling or unable to continue as Depository for such
Global Security or if at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company executes and delivers to the Trustee a Company Order 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, or both, 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, such Global Security may be exchanged for
Securities registered in the names of, and the transfer of such Global Security
may be registered to, such Persons (including Persons other than the Depository
with respect to such series and its nominees) as such Depository shall direct.
Notwithstanding any other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security shall also be a Global Security and bear
the legend specified in Section 204 except for any Security authenticated and
delivered in exchange for, or upon registration of transfer of, a Global
Security pursuant to the preceding sentence.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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 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 has been acquired by a purchaser
without notice of any adverse claim, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duty provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (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 Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 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 Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series
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(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).
(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.
Unless otherwise specified pursuant to Section 301, at the option of
the Company, interest on the Securities of any series that bears interest may be
paid by mailing a check to the address of any Holder as such address shall
appear in the Securities Register.
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 Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any 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 notice to the contrary.
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 written certification, proxy
or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Global Security.
SECTION 309. Cancellation.
All Securities 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 it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by
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this Indenture. All canceled Securities held by the Trustee shall be disposed of
by the Trustee in accordance with its customary procedures unless the Trustee is
otherwise directed by a Company Order.
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 of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
With respect to any series of Securities, if at any time (a) the
Company shall have paid or caused to be paid the principal of and any premium
and interest on all the Securities of such series Outstanding hereunder, as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all Securities of such series
theretofore authenticated (other than any Securities of such series which shall
have been apparently destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 306) or (c) the Company and the Trustee
shall have entered into an agreement in form and substance satisfactory to the
Company and the Trustee providing for the creation of an escrow fund and the
Company shall have irrevocably deposited or caused to be so deposited in trust
with the Trustee, as escrow agent of said fund, sufficient funds in cash and/or
Eligible Obligations and/or U.S. Government Obligations, maturing as to
principal and interest in such amounts and at such times, as will be sufficient
without consideration of any reinvestment of such interest, and as further
expressed in the opinion of a nationally recognized firm of independent public
accountants in a written certification thereof delivered to the Trustee at or
prior to the time of such deposit, to pay at the Stated Maturity or Redemption
Date all such Securities of such series not theretofore delivered to the Trustee
for cancellation, including principal and any premium and interest to the Stated
Maturity or Redemption Date, and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect with respect to the Securities of such series
(except as to (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, defaced, or apparently destroyed, lost or stolen
Securities of such series, (iii) rights of Holders of Securities of such series
to receive payments of principal thereof (and premium, if any) and interest
thereon and remaining obligations to make mandatory sinking fund payments, (iv)
the rights, remaining obligations, if any, and immunities of the Trustee
hereunder and (v) the rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them), and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to the Securities of such series
have been complied with, and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to the Securities of such series. In the event Eligible
Obligations are to be deposited with the Trustee pursuant to this Section, the
Opinion of Counsel to be delivered hereunder
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shall state substantially to the effect that neither the Trustee nor any trust
fund deposit created pursuant to this Section will be required to be registered
under the Investment Company Act of 1940, as amended, and that, based on a
ruling of the Internal Revenue Service or other change in applicable federal
income tax law, holders of the Securities affected will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit or
defeasance and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case as if such
deposit and defeasance had not occurred. The Company agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred
and to compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of such series, the obligations of the Company to the
Trustee under Section 607 and, if funds shall have been deposited with the
Trustee pursuant to subclause (c) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to provisions 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 of the
relevant series 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 any
premium and interest for whose payment such money has been deposited with the
Trustee, which funds need not be segregated except to the extent required by
law.
SECTION 403. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
securities in accordance with Section 402 of this Indenture, by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 401 of this Indenture, until such time as the Trustee or Paying Agent is
permitted to apply all such money or securities in accordance with Section 402
of this Indenture; provided that, if the Company has made any payment of
principal of or interest on any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or securities held by the
Trustee or Paying Agent.
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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) which
shall have occurred and is continuing:
(1) default in the payment of any interest upon any Security
of that series when such interest becomes due and payable or default in
the payment of any mandatory sinking fund payment provided for by the
terms of any series of Securities, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (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 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 by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in the principal
amount of the Outstanding Securities of such series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) without petition, approval or consent of the Company, a
period of 60 days shall have elapsed after
(a) the entry of an order for relief under the
Federal Bankruptcy Act by a court of competent jurisdiction,
or
(b) The entry by a court of competent jurisdiction of
an order granting relief under any applicable bankruptcy,
insolvency or other similar law or statute of the United
States of America or any State thereof; or
(c) the appointment by such a court of a trustee,
custodian, receiver or other similar official of the Company
or of all or any substantial part of its property upon the
application of any creditor in any insolvency or bankruptcy
proceeding or other creditor's suit;
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but such period of 60 days shall not include any period during which
any such decree or order shall be stayed upon appeal or otherwise; or
(5) the filing by the Company of, or consenting or acquiescing
by the Company to a petition seeking an order for relief under the
Federal Bankruptcy Act or the making by it of an assignment for the
benefit of creditors or the consenting by it to, or failure by it to
contest, the appointment of a custodian or receiver of all or any
substantial part of the property of the Company; or the filing by the
Company of a petition or answer seeking, consenting to or acquiescing
in the granting of relief under any other applicable bankruptcy,
insolvency or other similar law or statute of the United States of
America or any State thereof; or
(6) any other Event of Default provided with respect to
Securities of that series.
The Trustee shall not be charged with or be deemed to have knowledge of
any default or Event of Default, except for Events of Default specified in
clause (1) or (2) of this Section 501, until a Responsible Officer has actual
notice thereof or until a written notice of any such event is received by the
Trustee at the Corporate Trust Office, Attention: Corporate Trust Department and
such notice refers to the Securities generally, the Company or this Indenture.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2) or (6) of Section
501 with respect to Securities of any series at the time Outstanding has
occurred, then in every such case, during the continuance of any such Event of
Default, the Trustee or the Holders of not less than 25% 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 to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified portion thereof)
shall become immediately due and payable. If an Event of Default described in
clause (3) of Section 501 occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of all the
Securities then Outstanding may declare the principal amount (or, if any such
Securities 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
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), and upon any such declaration such
principal amount (or specified portion thereof) shall become immediately due and
payable. If an Event of Default described in clause (4) or (5) of Section 501
occurs and is continuing, the principal of and any interest on all of the
Securities then Outstanding shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the
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case may be), by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of that
series (or of all series, as the case may be),
(B) the principal of (and premium, if any, on) any
Securities of that series (or of all series, as the case may
be) which has become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
legally enforceable, 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 the Trustee under Section
607;
and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be), which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission 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,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, 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,
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disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) 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 (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized 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 the Trustee under Section 607) and of the
Holders allowed in such judicial proceeding, and to collect and receive any
moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, 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.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607, be for the
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ratable benefit of the Holders of the Securities 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 any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series 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 25% in principal amount of
the Outstanding Securities of that series in the case of any Event of
Default described in clause (1), (2) or (6) of Section 501, or the
Holders of not less than 25% in principal amount of all Outstanding
Securities in the case of any Event of Default described in clause (3),
(4) or (5) of Section 501, 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 filled 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
not less than a majority in principal amount of the Outstanding
Securities of that series in the case of any Event of Default described
in clause (1), (2) or (6) of Section 501, or, in the case of any Event
of Default
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described in clause (3), (4) or (5) of Section 501, by the Holders of
not less than a majority in principal amount of all Outstanding
Securities;
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 to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause ( 1), (2) or (6) of Section 501, or of Holders of all
Securities in the case of any Event of Default described in clause (3), (4) or
(5) of Section 501, 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,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2) or (6) of Section 501, or of Holders of all
Securities in the case of any Event of Default described in clause (3), (4) or
(5) of Section 501.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding 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, the Trustee and the Holders 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 in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, relating to or arising under clause (1), (2) or
(6) of Section 501, and, with respect to all Securities, the Holders of not less
than a majority in principal amount of all Outstanding Securities 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, not relating to or arising under clause (1), (2) or (6) of Section
501, provided that in each case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(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.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
described in clause (1), (2) or (6) of Section 501 (or, in the case of a default
described in clause (3), (4) or (5) of Section 501, the Holders of not less than
a majority in principal amount of all Outstanding Securities may waive any such
past default), and its consequences, except a default
(1) in respect of the payment of the principal of or any
premium or interest on any Security, 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 shaft extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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. 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.
If a default occurs hereunder with respect to Securities of any series
and the Trustee knows of such default, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that (a) in the case of any
default of the character specified in Section 501(3) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof, and (b) except in the case of a default in the
payment of the principal of or any premium 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
Trust Committee of Directors or a Responsible Officer of the Trustee in good
faith determines that the withholding of such notice is in the interest
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of the Holders of the Securities of such series. 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.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be 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 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, 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, 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;
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(h) the Trustee shall have no responsibility to determine
whether any payments with respect to the Securities are in compliance
with any applicable usury laws and subsequent revisions, repeals or
judicial interpretations thereof. Notwithstanding any provisions of
this Indenture or the Securities, the Trustee and any Paying Agent
shall have the right to assume that payments with respect to the
Securities are in compliance with any applicable usury laws unless and
until it shall have received from the Company, in conformity with
Sections 102 and 103 of this Indenture, (1) an Opinion of Counsel to
the effect that, as the result of a final judicial interpretation by a
court of competent jurisdiction, any payments with respect to the
Securities will exceed the maximum amount allowed by applicable law and
that any direction to the Trustee by the Company for action under
Section 113 of this Indenture is in compliance with all applicable
usury laws and the provisions of this Indenture and the Securities and
(2) an Officers' Certificate setting forth the action required to be
taken with respect to the Securities pursuant to Section 113 of this
Indenture, together with any computations or calculations with respect
thereof, and stating that such action is in compliance with the
provisions of this Indenture and the Securities;
(i) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 102. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such certificate
or opinion; and
(j) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferree upon
it by this Indenture.
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, 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 legality, validity or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not the 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 and any
Paying Agent shall be under no liability for
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interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION 607. Compensation and Reimbursement
The Company agrees
(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 any express trust);
(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, without
limitation, the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
willful misconduct 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.
To secure the Company's payment obligations in this Section 607, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee under this Indenture,
except money or property held in trust to pay principal of, premium, if any, and
interest on particular Securities;
If the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in clause (4) or (5) of Section 501, the
expenses and the compensation for the services will be intended to constitute
expenses of administration under Title 11 of the United States Bankruptcy Code
or any applicable federal or state law for relief of debtors; and
The provisions of this Section 607 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and its Corporate Trust
Office in New York, New York. If such Person 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 Person 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. 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 and to the Company.
(d) If at any time:
(1) the Trustee shall fall to comply with Section 608
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security of the
applicable series 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 or by any such Holder, or
(3) the Trustee shall become incapable of acting with
respect to any series of Securities 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 by a Board Resolution may
remove the Trustee with respect to any one or more of such series of
Securities, or (ii) subject to Section 514, any
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Holder who has been a bona fide Holder of a Security of that series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee or Trustees
with respect to Securities of that series.
(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 Outstanding Securities of
one or more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more
or all 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 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. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section
611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series to all Holders of Securities of such series in the manner
provided in Section 106. 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 series of Outstanding Securities, every
such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but,
on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each Successor Trustee
shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) and (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 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
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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 any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may, with notice to the Company, 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 original issue and 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 of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company
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and shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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 alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
....................................
HSBC Bank USA
As Trustee
By..................................
As Authenticating Agent
By .................................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will, with respect to each series of Securities
Outstanding, furnish or cause to be furnished to the Trustee
(a) semi-annually, on dates mutually acceptable to the Trustee
and the Company, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of such series as of
a date mutually acceptable to the Trustee and the Company, and
(b) at such other times as the Trustee may request in writing,
within, 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date
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not more than 15 days prior to the time such list is furnished (or if
any provision of this Indenture or any Security requires the Trustee to
interact with Holders of any Security as of a given date, such list to
provide the names and addresses of the Holders as of such date);
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 preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section
701 and the names and addresses of Holders received by the Trustee in
its capacity as Paying Agent. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list
so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after each May 15, beginning May 15, 2000,
the Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities as to which it is Trustee are
listed, with the Commission and with the Company. The Company will
notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, however, that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
SECTION 801. Consolidation, Merger or Sale Permitted Under Certain
Conditions.
Nothing contained in this Indenture or in the Securities shall be
deemed to prevent the consolidation or merger of the Company with or into any
other Person, or the merger into the Company of any other Person, or the sale by
the Company of its property and assets as, or substantially as, an entirety, or
otherwise; provided, however, (a) that, in case of any such consolidation or
merger, the Person resulting from such consolidation or any Person other than
the Company into which such merger shall be made shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the party of the first part hereto and shall become liable and be bound for,
and shall expressly assume, by an indenture supplemental hereto in form
satisfactory to the Trustee executed and delivered to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on, all
the Securities then Outstanding and the performance and observance of each and
every covenant and condition of this Indenture on the part of the Company to be
performed or observed, and (b) that, as a condition of any such sale of the
property and assets of the Company as, or substantially as, an entirety, the
Person to which such property and assets shall be sold shall (i) expressly
assume, as a part of the purchase price thereof, the due and punctual payment of
the principal of (and premium, if any) and interest on all the Securities and
the performance and observance of all the covenants and conditions of this
Indenture on the part of the Company to be performed or observed, and (ii)
simultaneously with the delivery to it of the conveyances or instruments of
transfer of such property and assets, execute and deliver to the Trustee an
indenture supplemental hereto in form satisfactory to the Trustee, whereby such
purchasing Person shall so assume the due and punctual payment of the principal
of (and premium, if any) and interest on all the Securities then outstanding and
the performance and observance of each and every covenant and condition of this
Indenture on the part of the Company to be performed or observed, to the same
extent that the Company be bound and liable and provided further that no such
consolidation, merger or sale shall be made if, immediately after such
transaction the Person (whether the Company or such other Person) formed by or
surviving any such consolidation or merger, or to which such sale or conveyance
shall have been made, shall be in default in the performance or observance of
any of the terms, covenants and conditions of this Indenture to be kept or
performed by the Company, and (if other than the Company) shall not be a Person
organized under the laws of the United States or a State thereof.
SECTION 802. Substitution of Successor Person for the Company.
The Company will not consolidate with any other Person or permit the
Company to be merged into any other Person, or sell its property and assets as,
or substantially as, an entirety except upon the terms and conditions set forth
in this Article Eight. If at any time there be any consolidation, merger, sale
or conveyance of property to which the covenants of this Article Eight are
applicable, then in any such event the successor Person will promptly deliver to
the Trustee: (i) an Officers' Certificate stating that as of the time
immediately after the effective date of any such transaction the covenants of
the Company contained in this Article Eight have been complied with and the
successor Person is not in default under the provisions of this Indenture; and
(ii) an Opinion of Counsel stating that in his opinion such covenants have been
compiled with and that any
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instrument or instruments executed in the performance of such covenants comply
with the requirements thereof. Upon any consolidation or merger, or any sale of
the property and assets of the Company as, or substantially as, an entirety in
accordance with the provisions of this Article Eight, the Person formed by such
consolidation or into which the Company shall have been merged or to which such
sale shall have been made shall succeed to and be substituted for the Company
with the same effect as if it had been named herein as a party hereto, and
thereafter from time to time such Person may exercise each and every right and
power of the Company under this Indenture, in the name of the Company or in its
own name; and any act or proceeding by any provision of this Indenture required
or permitted to be done by any board or officer of the Company may be done with
like force and effect by the like board or officer of any Person that shall at
the time be the successor of the Company hereunder; and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture or any
prior successor Person which shall theretofore have become such in the manner
described in Section 801) shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
SECTION 803. Opinion of Counsel and Officers' Certificate to be given
to Trustee.
The Trustee shall be entitled to receive an Opinion of Counsel and
Officers' Certificate as conclusive evidence that any such consolidation,
merger, sale or conveyance and any assumption permitted or required by the terms
of this Article Eight comply with the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company 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
(3) to add any additional Events of Default with respect to
all or any series of Securities (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating that
such Events of Default are being included solely for the benefit of
such series); or
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(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with
respect to such provision or (ii) shall become effective with respect
to any such series only when there is no Security of such series
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
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 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
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (9) shall not, as evidenced by an Opinion of
Counsel delivered to the Trustee, adversely affect the interests of the
Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of more than 50% in principal amount of
all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the right of the Holders of Securities under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a
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declaration of acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section
504, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or 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
(3) modify any of the provisions of this Section, Section 513
or Section 1009, 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 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 under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 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 601) shall be fully protected in relying upon, in
addition to the documents required by Section 102, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture and that it will be valid and binding upon the Company. 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.
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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
shall be bound thereby.
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.
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 or cause to be paid the
principal of and any premium and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
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 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 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 or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such
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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 for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee and the Holders of such series 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 or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and 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, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium and interest so
becoming due, such sum to be held as provided by the Trust Indenture Act, 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 (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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 Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
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SECTION 1004. 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, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary 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 in the judgment of the Company 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 the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment or charge whose amount, applicability or
validity is being contested in good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating whether or not
to the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture, and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1002, and 1004 to 1006,
inclusive, if before the time for such compliance the Holders of more than 50%
in principal amount of the Outstanding Securities shall, by Act of such Holders,
waive such compliance in such instance with such term, provision or
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condition. In the event that there shall be included in this Indenture any
covenant, other than a covenant to pay principal, premium (if any) and interest,
solely for the benefit of one or more, but less than all, series of Securities,
then, unless otherwise expressly provided with respect to such covenant, the
Company may similarly omit in any particular instance to comply with any term,
provision or condition of such covenant if before the time for such compliance
the Holders of more than 50% in principal amount of all Outstanding Securities
entitled to the benefit of such covenant, by Act of such Holders, waive such
compliance in such instance with such term, provision or condition. No such
waiver contemplated by this Section 1008 shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 1009. Negative Pledge and Exceptions Thereto.
So long as any of the Securities are outstanding, the Company shall
not, directly or indirectly, create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, except in favor of the Company or any
Subsidiary, any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, to secure any indebtedness of the Company or any
Subsidiary, without making effective provisions whereby the Securities shall be
equally and ratably secured with any and all such indebtedness so secured and
with any other indebtedness similarly entitled to be equally and ratably
secured; provided, however, that this restriction shall not apply to or prevent
the creation or existence of any:
(1) Liens for taxes, assessments or charges imposed on the
Company or any Subsidiary or any of their property by any governmental
authority not yet due or which are being contested in good faith by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or any of its Subsidiaries, as
the case may be, in accordance with generally accepted accounting
principles applicable to electric utilities generally at the time;
(2) Liens imposed by law, such as carriers' warehousemen's,
mechanics', materialmen's, repairmen's or other like Liens incurred in
the ordinary course of business and securing obligations that are not
yet due or that are being contested in good faith by appropriate
proceedings, and Liens arising out of judgments or awards not exceeding
$25,000,000 in the aggregate with respect to which appeals are being
prosecuted, execution pending such appeals having been effectively
stayed;
(3) pledges or deposits in connection with worker's
compensation, unemployment insurance and other social security laws, or
to secure the performance of bids, tenders contracts (other than for
borrowed money), leases, statutory obligations, surety or appeal bonds,
or indemnity, performance or other similar bonds, in the ordinary
course of business;
(4) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not in any
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case materially detract from the value of the property subject thereto
or interfere with the ordinary conduct of the business of the Company
or any of its Subsidiaries;
(5) the Lien of the Indenture of Mortgage and Deed of Trust
dated July 1, 1945, as supplemented and in effect from time to time,
from the Company to the Marine Midland Trust Company of New York (now
HSBC Bank USA) (the "Mortgage");
(6) Permitted Encumbrances (as defined in Section 1.11 of the
Mortgage);
(7) Liens securing the payment of Tax-Free Debt, provided that
each such Lien shall extend only to the property, and proceeds thereof,
being financed by the Tax-Free Debt secured thereby;
(8) Liens on or over the whole or any part of the assets of
the Company as security for any indebtedness owing by the Company to
any Subsidiary whose primary function is that of acting as a financing
Subsidiary of the Company and consisting of one or more loans made to
the Company by such Subsidiary and repayable on the same date as a loan
or other indebtedness incurred by such Subsidiary; provided, however,
that the aggregate principal amount of the indebtedness secured by all
such Liens shall not exceed the aggregate principal amount of all such
indebtedness incurred by such Subsidiary; and provided further, that
the aggregate principal amount of the indebtedness secured by all such
Liens shall not exceed $100,000,000;
(9) Liens over all or any part of the assets of the Company or
any Subsidiary of the Company constituting a specific construction
project or generating plant as security for any indebtedness incurred
for the purpose of financing all or such part, as the case may be, of
such construction project or generating plant, and undetermined Liens
and charges incidental to such construction;
(10) the right reserved to, or vested in, any municipality or
public authority by the terms of any right, power, franchise, grant,
license, permit or by any provision of law, to purchase or recapture or
designate a purchaser of, any property;
(11) Liens on property or assets of any Subsidiary in favor of
the Company;
(12) Liens with respect to which cash in the amount of the
indebtedness secured by such Liens has been deposited with the Person
serving as the Agent under the Credit Agreement dated as of July 29,
1993 among the Company and the banks listed on the signature pages
thereof, as amended from time to time, or any agreement taking the
place thereof entered into hereafter by the Company; or
(13) Liens on or over specific assets hereafter acquired which
are created or assumed contemporaneously with, or within 120 days after
such acquisition, for the sole purpose of financing or refinancing the
acquisition of such assets.
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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 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, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor 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 not previously called for redemption, by lot or by
such other 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.
If less than all of the Securities of such series and of a specified tenor 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 and specified tenor not previously called
for redemption in accordance with the preceding sentence.
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.
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.
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SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
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 of any Securities, 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 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.
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, in which event the
Company shall provide the Trustee with the information required by clauses (1)
through (6) above.
SECTION 1105. Deposit of Redemption Price.
Prior to 11:00 a.m., New York City time, on 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 (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
The Paying Agent shall provide notice to the Trustee of such deposit.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, 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. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company
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at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
301, installments of interest 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 Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium 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,
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 and of like tenor, 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. If a Global Security is so surrendered, such new
Security so issued shall be a new Global Security.
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 to the Trustee Outstanding Securities of a
series (other than any previously called for redemption) theretofore purchased
or otherwise acquired by the Company and (2) may receive credit for Securities
of a series which have been previously delivered to the Trustee by the Company
or for 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
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optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any mandatory sinking fund payment
with respect to the Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms of such series;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 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 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series, and will 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
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1301. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or
premium, if any) or interest 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 of this
Indenture, against any incorporator, or against any stockholder, officer or
director, as such, past, present or future, of the Company, or of any
predecessor or successor corporation, either directly or through the Company or
any such predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, it being expressly 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 insured by, any such
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, because of the indebtedness hereby authorized or under or by reason
of any of the obligations, covenants, promises or agreements contained in this
Indenture or in any of the Securities or to be implicit 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 issue of the Securities; provided, however, that nothing
herein or in the Securities contained shall be taken to prevent recourse to and
the enforcement of the
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liability, if any, of any stockholder or subscriber to capital stock of the
Company upon or in respect of shares of capital stock not fully paid up.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By
-----------------------------------
Name:
Title:
HSBC BANK USA
as Trustee
By
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Name:
Title:
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