EXHIBIT 4(d)
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SOUTHWESTERN ELECTRIC POWER COMPANY,
ISSUER
TO
THE BANK OF NEW YORK,
TRUSTEE
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SUBORDINATED INDENTURE
DATED AS OF _________________________
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SOUTHWESTERN ELECTRIC POWER COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________________
Trust Indenture Act Section Indenture Section
ss.310 (a)(1)........................................ 909
(a)(2)........................................ 909
(a)(3)........................................ 915
(a)(4)........................................ Not Applicable
(b)........................................... 908
910
ss.311 (a)........................................... 913
(b)........................................... 913
(c)........................................... Not Applicable
ss.312 (a)........................................... 1001
(b)........................................... 1001
(c)........................................... 1001
ss.313 (a)........................................... 1002
(b)(1)........................................ Not Applicable
(b)(2)........................................ 1002
(c)........................................... 1002
(d)........................................... 1002
ss.314 (a)........................................... 1002
(a)(4)........................................ 605
(b)........................................... Not Applicable
(c)(1)........................................ 102
(c)(2)........................................ 102
(c)(3)........................................ Not Applicable
(d)........................................... Not Applicable
(e)........................................... 102
ss.315 (a)........................................... 901(a)
(b)........................................... 902
(c)........................................... 901(b)
(d)........................................... 901(c)
(d)(1)........................................ 901(a)(1), 901(c)(1)
(d)(2)........................................ 901(c)(2)
(d)(3)........................................ 901(c)(3)
(e)........................................... 814
ss.316 (a)........................................... 812
813
(a)(1)(A)..................................... 802
812
(a)(1)(B)..................................... 813
(a)(2)........................................ Not Applicable
(b)........................................... 808
ss.317 (a)(1)...................................... 803
(a)(2)........................................ 804
(b)........................................... 603
ss.318 (a)........................................... 000
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XXXXXXXXXXXX XXXXXXXXX, dated as of _______________________ among
SOUTHWESTERN ELECTRIC POWER COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"), having
its principal office at 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, and The Bank of
New York, a New York banking corporation, having its principal corporate trust
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Trustee (herein
called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as contemplated herein,
and all acts necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof (except as otherwise contemplated herein), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) all terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States of America,
and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United
States of America at the date of such computation;
(d) any reference to an "Article" or a "Section" refers
to an Article or a Section, as the case may be, of this Indenture;
and
(e) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in
that Article.
"ACT", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
["ADDITIONAL INTEREST" has the meaning specified in Section 313.]
"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 generally the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "CONTROLLING" and "CONTROLLED" have meanings
correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person or Persons authorized by
the Trustee to act on behalf of the Trustee to authenticate the Securities of
one or more series.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, or any other Person duly
authorized by the Company, as the case requires, to act in respect of matters
relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors of the
Company, as the case requires, or any committee of that board duly authorized to
act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company, as the case requires, to
have been duly adopted by the Board of Directors of the Company, as the case
requires, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
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"BUSINESS DAY", when used with respect to a Place of Payment or
any other particular location specified in the Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as contemplated by
Section 301.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the date of execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body, if any, performing such duties at such time.
["COMMON SECURITIES" means any common trust interests issued by a
Trust or similar securities issued by permitted successors to such Trust in
accordance with the Trust Agreement pertaining to such Trust.]
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture 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 ORDER" or "COMPANY REQUEST" mean, respectively, a written
order or request, as the case may be, signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 0 Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"CORPORATION" means a corporation, association, company, joint
stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"[DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 802.]
"DOLLAR" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"[ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to
such Securities, as contemplated by Section 301.]
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder, as amended from time to time.
"GOVERNMENT OBLIGATIONS" means securities which are (a) (i) direct
obligations of the United States where the payment or payments thereunder are
supported by the full faith and credit of the United States or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States where the timely payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by the United States or (b) depository receipts issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any such
Government Obligation or a specific payment of interest on or
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principal of or other amount with respect to any such 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 Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"HOLDER" means a Person in whose name a Security is registered in
the Security Register.
"INDENTURE" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
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 Indenture 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.
"[INTEREST", when used with respect to a Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.]
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon call for redemption or
otherwise.
"NOTICE OF DEFAULT" means a written notice of the kind specified
in Section 801(c).
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer of the Company or the Guarantor, as the case requires, and
delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
be counsel for the Company or the Guarantor, and who shall be acceptable to the
Trustee.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid for all purposes
of this Indenture in accordance with Section 701 (whether or not
the Company's indebtedness in respect thereof shall be satisfied
and discharged for any other purpose); and
(c) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it and the Company
that such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
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obligor owns all Securities Outstanding under this Indenture, or
all Outstanding Securities of each such series and each such
Tranche, as the case may be, determined without regard to this
clause (x)) shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities
which the Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have been
pledged in good faith may be regarded as Outstanding if it is
established to the reasonable satisfaction of the Trustee that the
pledgee, and not the Company, or any such other obligor or
Affiliate of either thereof, has the right so to act with respect
to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company
or of such other obligor;
[(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 802; and]
[(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a composite
currency that shall be deemed to be Outstanding for such purposes
shall be the amount of Dollars which could have been purchased by
the principal amount (or, in the case of a Discount Security, the
Dollar equivalent on the date determined as set forth below of the
amount determined as provided in (y) above) of such currency or
composite currency evidenced by such Security, in each such case
certified to the Trustee in an Officer's Certificate, based (i) on
the average of the mean of the buying and selling spot rates
quoted by three banks which are members of the New York Clearing
House Association selected by the Company in effect at 11:00 A.M.
(New York time) in The City of New York on the fifth Business Day
preceding any such determination or (ii) if on such fifth Business
Day it shall not be possible or practicable to obtain such
quotations from such three banks, on such other quotations or
alternative methods of determination which shall be as consistent
as practicable with the method set forth in (i) above;]
provided, further, that in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company, authorized
by the Company to pay the principal of, and premium, if any, or interest, if
any, on any Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series
from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any, thereon, the
Stated Maturity or Maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents from
time to time subsequent to the initial request for the authentication and
delivery of such Securities by the Trustee, as contemplated in Section 301 and
clause (b) of Section 303.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, trust or unincorporated organization or any
government or any political subdivision, instrumentality or agency thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of
any series, or Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities of such series or
Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition,
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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.
["PREFERRED SECURITIES" means any preferred trust interests issued
by a Trust or similar securities issued by permitted successors to such Trust in
accordance with the Trust Agreement pertaining to such Trust.]
"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.
"[REQUIRED CURRENCY" has the meaning specified in Section 311.]
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any senior trust officer, any trust officer or
assistant trust officer, the controller or any assistant controller or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer of the Trustee to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and delivered
under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, and the rules
and regulations promulgated thereunder, as amended from time to time.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SENIOR INDEBTEDNESS", when used with respect to the Company,
means all obligations (other than non-recourse obligations and the indebtedness
issued under this Indenture) of, or guaranteed or assumed by, the Company, as
the case may be, for borrowed money, including both senior and subordinated
indebtedness for borrowed money (other than the Securities), or for the payment
of money relating to any lease which is capitalized on the consolidated balance
sheet of the Company, as the case may be, and its subsidiaries in accordance
with generally accepted accounting principles as in effect from time to time, or
evidenced by bonds, debentures, notes or other similar instruments, and in each
case, amendments, renewals, extensions, modifications and refundings of any such
indebtedness or obligations, whether existing as of the date of this Indenture
or subsequently incurred by the Company, as the case may be, unless, in the case
of any particular indebtedness, renewal, extension or refunding, the instrument
creating or evidencing the same or the assumption or guarantee of the same
expressly provides that such indebtedness, renewal, extension or refunding is
not superior in right of payment to or is PARI PASSU with the Securities.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at
which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by reference
to the Stated Interest Rate on a Security shall be made without regard to the
effective interest cost to the Company of such Security and without regard to
the Stated Interest Rate on, or the effective cost to the Company of,
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any other indebtedness the Company's obligations in respect of which are
evidenced or secured in whole or in part by such Security.
"STATED MATURITY", when used with respect to any Security or any
obligation or any installment of principal thereof or interest thereon, means
the date on which the principal of such obligation or such installment of
principal or interest is stated to be due and payable (without regard to any
provisions for redemption, prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount and/or date of
issuance.
["TRUST" means SWEPCO Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware, or any other trust designated
pursuant to Section 301 hereof or any permitted successor under the Trust
Agreement pertaining to such Trust.]
["TRUST AGREEMENT" means the Amended and Restated Trust Agreement,
dated as of ______, ____, relating to SWEPCO Capital Trust I, or an Amended and
Restated Trust Agreement relating to a Trust designated pursuant to Section 301
hereof, in each case, among Southwestern Electric Power Company, as Depositor
and Trust Securities Guarantor, the trustees named therein and the several
holders referred to therein, as such agreement or agreements, as the case may
be, may be amended from time to time.]
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture
Act of 1939 as in force at such time.
["TRUST SECURITIES GUARANTEE" means the Trust Securities Guarantee
Agreement between the Guarantor, as Trust Securities Guarantor, and a guarantee
trustee for the benefit of the holders of Preferred Securities [and Common
Securities] issued by such Trust.]
"UNITED STATES" means the United States of America, its
territories, its possessions and other areas subject to its jurisdiction.
[Additional Definitions to be included if Securities are issued in
connection with Stock Purchase Units].
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
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(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(d) 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.
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, unless, in
any case, such officer has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which such Officer's
Certificate may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further examination
or investigation), insofar as it relates to or is dependent upon factual
matters, information with respect to which is in the possession of the Company,
upon a certificate of, or representations by, an officer or officers of the
Company, as the case may be, unless such counsel has actual knowledge that the
certificate or opinion or representations with respect to the matters upon which
his opinion may be based as aforesaid are erroneous. In addition, any Opinion of
Counsel may be based (without further examination or investigation), insofar as
it relates to or is dependent upon matters covered in an Opinion of Counsel
rendered by other counsel, upon such other Opinion of Counsel, unless such
counsel has actual knowledge that the Opinion of Counsel rendered by such other
counsel with respect to the matters upon which his Opinion of Counsel may be
based as aforesaid are erroneous. If, in order to render any Opinion of Counsel
provided for herein, the signer thereof shall deem it necessary that additional
facts or matters be stated in any Officer's Certificate provided for herein,
then such certificate may state all such additional facts or matters as the
signer of such Opinion of Counsel may request.
(b) 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. Where (i) any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, or (ii) two or more Persons are each required
to make, give or execute any such application, request, consent, certificate,
statement, opinion or other instrument, any such applications, requests,
consents, certificates, statements, opinions or other instruments may, but need
not, be consolidated and form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.
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SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing or, alternatively, may be embodied in and
evidenced by the record of Holders voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article Thirteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 901) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders shall be
proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The ownership, principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the definition of
Outstanding) and serial numbers of Securities held by any Person, and the date
of holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of principal
amount of Securities for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by written notice by such Holder
or any subsequent Holder, proven in the manner in which such instrument was
proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company shall so determine, new Securities
of any series, or any Tranche thereof, so modified as to conform, in the opinion
of the Trustee and the Company, to such action may be prepared and executed by
the Company and the Guarantor and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
(g) The Company may, at its option, by Company Order, as
appropriate, fix in advance a record date for the determination of Holders
entitled to give any request, demand, authorization, direction, notice, consent,
waiver or other Act solicited by the Company, but the Company shall have no
obligation to do so; provided, however, that the Company may not fix a record
date for the giving or making of any notice, declaration, request or direction
referred to in the next sentence. In addition, the Trustee may, at its option,
fix in advance a record date for the determination of Holders entitled to join
in the giving or making of any Notice of Default, any declaration of
acceleration referred to in Section 802, any request to institute proceedings
referred to in Section 807 or any direction referred to in Section 812. If any
such record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act, or such notice, declaration, request or
direction, may be given before
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or after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining (i) whether Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such Act (and for that
purpose the Outstanding Securities shall be computed as of the record date)
and/or (ii) which Holders may revoke any such Act (notwithstanding subsection
(e) of this Section ); and any such Act, given as aforesaid, shall be effective
whether or not the Holders which authorized or agreed or consented to such Act
remain Holders after such record date and whether or not the Securities held by
such Holders remain Outstanding after such record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE OR COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company by the Trustee or by any
Holder, shall be sufficient for every purpose hereunder (unless otherwise
expressly provided herein) if in writing and delivered personally to an officer
or other responsible employee of the addressee, or transmitted by facsimile
transmission, telex or other direct written electronic means to such telephone
number or other electronic communications address set forth for such party below
or such other address as the parties hereto shall from time to time designate,
or transmitted by registered mail, charges prepaid, to the applicable address
set forth for such party below or to such other address as any party hereto may
from time to time designate:
If to the Trustee, to:
The Bank of New York
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Capital Markets Fiduciary Services]
Telephone:
Telecopy:
If to the Company, to:
SOUTHWESTERN ELECTRIC POWER COMPANY
0 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Treasurer
Telephone:(614) 223-____ Telecopy: (000) 000-0000
Any communication contemplated herein shall be deemed to have been
made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission, telex or other direct
written electronic means, on the date of transmission, and if transmitted by
registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such Notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
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the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing by
the Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts
with another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any provision of the Trust Indenture
Act, such other provision shall control; and if any provision hereof otherwise
conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS.
The Article and Section headings in this Indenture are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall be
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder, the Holders and the holders of Senior Indebtedness, any benefit or
any legal or equitable right, remedy or claim under this Indenture [, provided,
however, that for so long as any Preferred Securities remain outstanding, the
holders of such Preferred Securities, subject to certain limitations set forth
in this Indenture, may enforce the Company's obligations hereunder, directly
against the Company, as third party beneficiaries of this Indenture without
proceeding against the Trust issuing such Preferred Securities].
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York (including without
limitation Section 5-1401 of the New York General Obligations Law or any
successor to such statute), except to the extent that the Trust Indenture Act
shall be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities other than a provision in Securities of any series, or any Tranche
thereof, or in the indenture supplemental hereto, Board Resolution or Officer's
Certificate which establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall apply in lieu of
this Section) payment of interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be made on the
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next succeeding Business Day at such Place of Payment [, except that if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case] with the same force and
effect as if made on the Interest Payment Date, Redemption Date, or Stated
Maturity, and, if such payment is made or duly provided for on such Business
Day, no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series and the Guarantees to be
endorsed thereon as contemplated by Article Fourteen shall be in substantially
the form or forms thereof established in the indenture supplemental hereto
establishing such series or in a Board Resolution establishing such series, or
in an Officer's Certificate pursuant to such a supplemental indenture or Board
Resolution, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities or Guarantees endorsed
thereon, as the case may be, as evidenced by their execution thereof. If the
form or forms of Securities of any series or Guarantees endorsed thereon are
established in a Board Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's Certificate, if any, shall
be delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 301 or
1201(g), the Securities of each series shall be issuable in registered form
without coupons. The definitive Securities and Guarantees endorsed thereon shall
be produced in such manner as shall be determined by the officers executing such
Securities or Guarantees, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
--------------------------------,
as Trustee
By:
-----------------------------
Authorized Officer
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 [; provided,
however, that all Securities shall be issued to a Trust to evidence loans by a
Trust of the proceeds of the issuance of Preferred Securities and Common
Securities of such Trust.]
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The Securities may be issued in one or more series. Subject to the
last paragraph of this Section, prior to the authentication and delivery of
Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution of the Company or in an
Officer's Certificate of the Company (which need not, comply with Section 102)
pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from Securities of
all other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of such series pursuant to Section
304, 305, 306, 406 or 1206 and except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom any interest on Securities of such series,
or any Tranche thereof, 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;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable or
any formulary or other method or other means by which such date or
dates shall be determined, by reference to an index or other fact
or event ascertainable outside of this Indenture or otherwise
(without regard to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal shall bear
interest after Maturity if different from the rate or rates at
which such Securities shall bear interest prior to Maturity, and,
if applicable, the rate or rates at which overdue premium or
interest shall bear interest, if any), or any formulary or other
method or other means by which such rate or rates shall be
determined by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise, the date or
dates from which such interest shall accrue; the Interest Payment
Dates and the Regular Record Dates, if any, for the interest
payable on such Securities on any Interest Payment Date; [the
right of the Company, if any, to extend the interest payment
periods and the duration of any such extension as contemplated by
Section 312;] and the basis of computation of interest, if other
than as provided in Section 310;
(f) the place or places at which or methods (if other
than as provided elsewhere in this Indenture) by which (i) the
principal of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof, shall be
payable, (ii) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (iii) exchanges
of Securities of such series, or any Tranche thereof, may be
effected and (iv) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security Registrar and any
Paying Agent or Agents for such series or Tranche; and if such is
the case, that the principal of such Securities shall be payable
without presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms and
conditions upon which the Securities of such series, or any
Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company and any restrictions on such redemptions;
(h) the obligation, if any, of the Company to redeem or
purchase or repay the Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other mandatory
redemption provisions or at the option of a Holder thereof and the
period or periods within which or the date or dates on which, the
price or prices at which and the terms and conditions upon which
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such Securities shall be redeemed or purchased or repaid, in whole
or in part, pursuant to such obligation and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption or repayment at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other than
denominations of $[25] and any integral multiple thereof;
(j) if the principal of or premium, if any, or interest,
if any, on the Securities of such series, or any Tranche thereof,
are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may
be made and the manner in which the amount of such coin or
currency payable is to be determined;
(k) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if
any, and interest, if any, on the Securities of such series, or
any Tranche thereof, shall be payable (if other than Dollars) and
the manner in which the equivalent of the principal amount thereof
in Dollars is to be determined for any purpose, including for the
purpose of determining the principal amount deemed to be
Outstanding at any time;
(l) if the principal of or premium, if any, or interest
on the Securities of such series, or any Tranche thereof, are to
be payable, or are to be payable at the election of the Company or
a Holder thereof, in securities or other property, the type and
amount of such securities or other property, or the formulary or
other method or other means by which such amount shall be
determined, and the period or periods within which, and the terms
and conditions upon which, any such election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, may be determined with reference
to an index or other fact or event ascertainable outside this
Indenture, the manner in which such amounts shall be determined to
the extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the entire principal amount thereof,
the portion of the principal amount of Securities of such series,
or any Tranche thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, or any exceptions to those specified in
Section 801, with respect to the Securities of such series, and
any covenants of the Company or the Guarantor for the benefit of
the Holders of the Securities of such series, or any Tranche
thereof, in addition to those set forth in Article Six, or any
exceptions to those set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities
of such series, or any Tranche thereof, may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person;
(q) the obligations or instruments, if any, which shall
be considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof, denominated in
a currency other than Dollars or in a composite currency, and any
provisions for satisfaction and discharge of Securities of any
series, in addition to those set forth in Section 701 and 702, or
any exceptions to those set forth in Section 701 and 702;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations on
the rights of the Holder or Holders of such Securities to transfer
or exchange the same or to obtain the registration of transfer
thereof, (ii) any limitations on the rights
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of the Holder or Holders thereof to obtain certificates therefor
in definitive form in lieu of global form and (iii) any other
matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all
matters incidental thereto which are not specifically addressed in
a supplemental indenture as contemplated by clause (g) of Section
1201;
(t) to the extent not established pursuant to clause (r)
of this paragraph, any limitations on the rights of the Holders of
the Securities of such Series, or any Tranche thereof, to transfer
or exchange such Securities or to obtain the registration of
transfer thereof; and if a service charge will be made for the
registration of transfer or exchange of Securities of such series,
or any Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof;
(v) the designation of the Trust to which Securities of
such series are to be issued;]
(w) any other terms of the Securities of such series, or
any Tranche thereof.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such terms shall be determined by
the Company or its agents in accordance with procedures specified in a Company
Order as contemplated in clause (b) of Section 303.
[All Securities of any one series shall be substantially
identical, except as to principal amount and date of issue and except as may be
set forth in the terms of such series as contemplated above.] The Securities of
each series shall be subordinated in right of payment to Senior Indebtedness of
the Company as provided in Article Fifteen.
Unless otherwise provided with respect to a series of Securities
as contemplated in Section 301(b), the aggregate principal amount of a series of
Securities may be increased and additional Securities of such series may be
issued up to the maximum aggregate principal amount authorized with respect to
such series as increased.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities of
each series shall be issuable in denominations of $[25] and any integral
multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities or any Tranche thereof, the Securities shall
be executed on behalf of the Company by an Authorized Officer of the Company,
and may have the corporate seal of the Company affixed thereto or reproduced
thereon attested by its Secretary, one of its Assistant Secretaries or any other
Authorized Officer. The signature of any or all of these officers on the
Securities may be manual or facsimile.
A Security bearing the manual or facsimile signature of an
individual who was at the time of execution an Authorized Officer of the Company
shall bind the Company, notwithstanding that any such individual has ceased to
be an Authorized Officer prior to the authentication and delivery of the
Security or did not hold such office at the date of such Security.
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The Trustee shall authenticate and deliver Securities of a series,
for original issue, at one time or from time to time in accordance with the
Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form
or forms and terms of the Securities of such series, as provided
in Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities, and, to the extent that the terms of
such Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301, either
(i) establishing such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be
established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery
pursuant to oral or electronic instructions from the Company or
any agent or agents thereof, which oral instructions are to be
promptly confirmed electronically or in writing), in either case
in accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) Securities of such series, each executed on behalf
of the Company by an Authorized Officer of the Company;
(d) an Opinion of Counsel to the effect that:
(i) (A) the forms of such Securities have been duly
authorized by the Company and the forms of the Securities have
been established in conformity with the provisions of this
Indenture;
(ii) (A) the terms of such Securities have been duly
authorized by the Company and the terms of the Securities have
been established in conformity with the provisions of this
Indenture; and
(iii) such Securities endorsed thereon, when authenticated
and delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will have been duly issued under this
Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity as at law);
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication and
delivery of Securities of such series, and that in lieu of the opinions
described in clauses (ii) and (iii) above such Opinion of Counsel may,
alternatively, state, respectively,
(x) that, when the terms of such Securities to be
endorsed thereon shall have been established pursuant to a Company
Order or Orders or Orders or pursuant to such procedures as may be
specified from time to time by a Company Order or Orders, all as
contemplated by and in accordance with the instrument or
instruments delivered pursuant to clause (a) above, such terms
will have been duly authorized by the Company, and will have been
established in conformity with the provisions of this Indenture;
and
(y) that such Securities, when (1) executed by the
Company, (2) authenticated and delivered by the Trustee in
accordance with this Indenture, (3) issued and delivered by the
Company and (4) paid for, all as contemplated by and in accordance
with the aforesaid Company Order or Orders or specified
procedures, as the case may be, will have been duly issued under
this
-16-
Indenture and will constitute valid and legally binding
obligations of the Company and entitled to the benefits provided
by the Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the forms and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of Counsel
and other documents delivered pursuant to Sections 201 and 301 and this Section,
as applicable, at or prior to the time of the first authentication of Securities
of such series, unless and until such opinion or other documents have been
superseded or revoked or expire by their terms. In connection with the
authentication and delivery of Securities of a series, pursuant to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities, do not violate any
applicable law or any applicable rule, regulation or order of any governmental
agency or commission having jurisdiction over the Company.
If the forms or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to this
Indenture will adversely affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Except as otherwise specified as contemplated by Section 301 with
respect to any series of securities, or any Tranche thereof, each Security,
shall each be dated the date of its authentication.
Except as otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security shall
be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee or its agent by manual signature of an authorized officer thereof, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
to the Company, or any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or
any Tranche thereof, 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, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities; provided,
however, that temporary Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
If temporary Securities of any series or Tranche are issued, the
Company shall cause definitive Securities of such series or Tranche to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable for definitive Securities of such series or
Tranche, upon surrender of the temporary Securities of such series or Tranche at
the office or agency of the Company maintained pursuant to Section 602 in a
Place of Payment for such series or Tranche, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
or Tranche, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor
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definitive Securities of the same series or Tranche, of authorized denominations
and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and of like
tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in one of the offices or
agencies designated pursuant to Section 602, with respect to the Securities of
each series or any Tranche thereof, a register (the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities of such series or Tranche and
the registration of transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each series, and such
Person is referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices or an office of any Affiliate (including
the Guarantor) as an office in which a register with respect to the Securities
of one or more series, or any Tranche or Tranches thereof, shall be maintained,
and the Company may designate itself or any Affiliate as the Security Registrar
with respect to one or more of such series. The Security Register shall be open
for inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon surrender
for registration of transfer of any Security of such series or Tranche at the
office or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, 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 and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any Security of
such series or Tranche may be exchanged at the option of the Holder for one or
more new Securities of the same series and Tranche, of authorized denominations
and of like tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities, which the Holder making the
exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company evidencing the
same obligation, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed or shall be accompanied by 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.
Unless otherwise specified as contemplated by Section 301, with
respect to Securities of any series, or any Tranche thereof, no service charge
shall be made for any registration of transfer or exchange of Securities, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any series, or
any Tranche thereof, during a period of 15 days immediately preceding the date
notice is to be given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
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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 Tranche, and of like tenor and
principal amount, having a Guarantee of the Guarantor endorsed thereon and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the
Trustee (a) evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security or indemnity as
may be reasonably required by them to save each of them and any agent of any of
them harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) in
connection therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone other than
the Holder of such new security, and any such new Security shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
[Subject to Section 312,] any interest on any Security of any
series which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the Holder on the related Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a date (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, as the case
may be, 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
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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
promptly cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such
series at the address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this 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 absolute
owner of such Security for the purpose of receiving payment of principal of and
premium, if any, and (subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and none of the Company, the Trustee or any agent of the Company or the
Trustee shall be affected by notice to the contrary.
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, if not theretofore canceled, shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever or which the Company shall not have issued and
sold, and all Securities so delivered shall be promptly canceled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be disposed
of in accordance with the Trustee's customary procedures, and the Trustee shall
promptly deliver a certificate of disposition to the Company unless, by a
Company Order, the Company shall direct that canceled Securities be returned to
it.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a 360-day year consisting of twelve
30-day months, and with respect to any period less than a full calendar month,
on the basis of the actual number of days elapsed during such period.
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SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of any Security denominated in any currency other than
Dollars or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Security as contemplated by Section
301, the obligation of the Company to make any payment of the principal thereof,
or the premium or interest thereon, shall not be discharged or satisfied by any
tender by the Company, or recovery by the Trustee, in any currency other than
the Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a currency other than
the Required Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency. The costs and
risks of any such exchange, including without limitation the risks of delay and
exchange rate fluctuation, shall be borne by the Company and the Company shall
remain fully liable for any shortfall or delinquency in the full amount of
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor except in the case of its negligence or willful
misconduct. The Company hereby waives any defense of payment based upon any such
tender or recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee, is less than the full amount
of Required Currency then due and payable.
[SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as no Event
of Default hereunder has occurred and is continuing with respect to the
Securities of any series, to extend interest payment periods from time to time
on all Securities of such series, if so specified as contemplated by Section 301
with respect to such Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such Securities.]
[SECTION 313. ADDITIONAL INTEREST.
So long as any Preferred Securities remain outstanding, if the
Trust which issued such Preferred Securities shall be required to pay, with
respect to its income derived from the interest payments on the Securities of
any series, any amounts for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed by the United States, or any
other taxing authority, then, in any such case, the Company will pay as interest
on such series such additional interest ("Additional Interest") as may be
necessary in order that the net amounts received and retained by such Trust
after the payment of such taxes, duties, assessments or governmental charges
shall result in such Trust's having such funds as it would have had in the
absence of any such payments.]
[Whenever in this Indenture there is mentioned, in any context,
the payment of interest on the Securities, such mention shall be deemed to
include the payment of Additional Interest to the extent that, in such context,
Additional Interest is, was or would be payable in respect thereof.]
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of such series or Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee [and in
the case of Securities of a series held by a Trust, the Property Trustee under
the related Trust Agreement] in writing of such Redemption Date and of the
principal amount of such Securities to be redeemed. In the case of any
redemption of Securities (a) prior
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to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (b) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be redeemed shall be
selected by the Trustee from the Outstanding Securities of such series or
Tranche not previously called for redemption, by such method as shall be
provided for such particular series or Tranche, or in the absence of any such
provision, by such method of random selection as the Trustee shall deem fair and
appropriate and which may, in any case, provide for the selection for redemption
of portions (equal to any authorized denomination for Securities of such series
or Tranche) of the principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for Securities of
such series or Tranche; provided, however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase all or any principal
amount of the Securities then Outstanding of any series, or any Tranche thereof,
and less than all of such Securities as to which such offer was made shall have
been tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
to be redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the particular
Securities to be redeemed and the portion of the principal amount
of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption Date,
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,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking or other fund,
if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
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Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in accordance with
Section 701, such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the principal
of and premium, if any, and interest, if any, on such Securities and that if
such money shall not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made.
Notice of redemption of Securities to be redeemed at the election
of the Company, and any notice of non-satisfaction of a condition for redemption
as aforesaid, shall be given by the Company or, on Company Request, by the
Trustee in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such surrender shall be a
condition to such payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of which installment
is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close
of business on the related Regular Record Date according to the terms of such
Security and subject to the provisions of Sections 305 and 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only in
part 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), 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 Tranche, of
any authorized denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or
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any Tranche thereof, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 502. Each sinking fund payment shall be
applied to the redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Securities
(other than any previously called for redemption) of a series or Tranche in
respect of which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series or Tranche which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of such mandatory sinking fund payment; provided, however, that no Securities
shall be applied in satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities so applied shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for
the Securities of any series, or any Tranche thereof, the Company shall deliver
to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking
fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series or Tranche pursuant to Section 502 and
stating the basis for such credit and that such Securities have
not previously been so credited, and the Company shall also
deliver to the Trustee any Securities to be so delivered. If the
Company shall not deliver such Officer's Certificate, the next
succeeding sinking fund payment for such series or Tranche shall
be made entirely in cash in the amount of the mandatory sinking
fund payment. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 404. Such notice having
been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any, and
interest, if any [(including Additional Interest)], on the Securities of each
series in accordance with the terms of such Securities and this Indenture.
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SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency where
payment of such Securities shall be made or surrendered for payment, where
registration of transfer or exchange of such Securities may be effected and
where notices and demands to or upon the Company in respect of such Securities
and this Indenture may be served. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of each such
office or agency and prompt notice to the Holders of any such change in the
manner specified in Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect of Securities of any
series, or any Tranche thereof, or shall fail to furnish the Trustee with the
address thereof, payment of such Securities may be made, registration of
transfer or exchange thereof may be effected and notices and demands in respect
thereby may be served at the Corporate Trust Office of the Trustee, and each of
the Company hereby appoints the Trustee as its agent for all such purposes in
any such event.
The Company may also from time to time designate one or more other
offices or agencies with respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that, unless otherwise
specified as contemplated by Section 301 with respect to the Securities of such
series or Tranche, no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency for such purposes
in each Place of Payment for such Securities in accordance with the requirements
set forth above. The Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified in Section 106, of any
such designation or rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the Company or
the Guarantor or any Affiliate of either of them, in which event the Company,
the Guarantor or such Affiliate, as the case may be, shall perform all functions
to be performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, or interest, if
any, on any of such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, prior to each due
date of the principal of and premium, if any, or interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of its action or failure so to
act.
The Company shall cause each Paying Agent for the Securities of
any series, or any Tranche thereof, other than the Company or the Trustee, to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
Securities of such series or Tranche in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
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(b) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of such series)
in the making of any payment of principal of and premium, if any,
or interest, if any, on the Securities of such series or Tranche;
and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent and, if
as stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and premium,
if any, or interest, if any, on any Security and remaining unclaimed for two
years after such principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if then held by the
Company, shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to the Company, may
at the expense of the Company, either (a) cause to be mailed, on one occasion
only, notice to such Holder that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such mailing, any unclaimed balance of such money then remaining will be paid to
the Company or (b) cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that after a date specified therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 605. ANNUAL OFFICER'S CERTIFICATE
Not later than ________ in each year, commencing ________, ____,
the Company shall deliver to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by its principal executive officer, principal
financial officer or principal accounting officer, as to such officer's
knowledge of such obligor's compliance with all conditions and covenants under
this Indenture, such compliance to be determined without regard to any period of
grace or requirement of notice under this Indenture.
SECTION 606. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in
(a) Section 607, 608 or any covenant or restriction
specified with respect to the Securities of any series, or any
Tranche thereof, as contemplated by Section 301 or by Section
1201(b), if before the time for such compliance the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
compliance with such term, provision or condition; and
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(b) Section 604 or 1101, if before the time for such
compliance the Holders of a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition;
but, in either case, no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect [; provided, however, so long as a Trust holds Securities
of any series, such Trust may not waive compliance or waive any default in
compliance by the Company with any covenant or other term contained in this
Indenture or the Securities of such series without the approval of the holders
of at least a majority in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected, obtained as provided in the
Trust Agreement pertaining to such Trust.]
SECTION 607. RESTRICTION ON PAYMENT OF DIVIDENDS.
So long as any Preferred Securities of any series remain
outstanding, if at such time (a) the Company shall be in default with respect to
its payment obligations under the Trust Securities Guarantee relating to such
Preferred Securities, (b) there shall have occurred and be continuing an Event
of Default (whether before or after expiration of any period of grace) resulting
from a payment default hereunder or (c) the Company shall have elected to extend
any interest payment period as provided in Section 312, and any such period, or
any extension thereof, shall be continuing, then the Company shall not (i)
declare or pay any dividends or distributions on its capital stock, other than
dividends paid in shares of capital stock Trust Securities, or (ii) redeem,
purchase, acquire or make a liquidation payment with respect to any Trust
Securities capital stock, or (iii) pay any principal, interest or premium on, or
repay, repurchase or redeem any debt securities that are equal or junior in
right of payment to the Trust Securities.
[SECTION 608. MAINTENANCE OF TRUST EXISTENCE.
So long as Preferred Securities of any series remain outstanding,
the Company shall (i) maintain direct or indirect ownership of all interests in
the Trust which issued such Preferred Securities, other than such Preferred
Securities, (ii) not voluntarily (to the extent permitted by law) dissolve,
liquidate or wind up such Trust, except in connection with a distribution of the
Securities to the holders of the Preferred Securities in liquidation of such
Trust, (iii) remain the sole Depositor under the Trust Agreement (the
"Depositor") of such Trust and timely perform in all material respects all of
its duties as Depositor of such Trust, and (iv) use reasonable efforts to cause
such Trust to remain a business trust and otherwise continue to be treated as a
grantor trust for Federal income tax purposes, provided that any permitted
successor to the Company under this Indenture may succeed to the Company's
duties as Depositor of such Trust; and provided further that the Company may
permit such Trust to consolidate or merge with or into another business trust or
other permitted successor under the Trust Agreement pertaining to such Trust so
long as the Company agrees to comply with this Section 608 with respect to such
successor business trust or other permitted successor.]
[SECTION 609. RIGHTS OF HOLDERS OF PREFERRED SECURITIES.
The Company agrees that, for so long as any Preferred Securities
remain outstanding, its obligations under this Indenture will also be for the
benefit of the holders from time to time of Preferred Securities, and the
Company acknowledges and agrees that such holders will be entitled to enforce
this Indenture, as third party beneficiaries, directly against the Company to
the same extent as if such holders of Preferred Securities held a principal
amount of Securities equal to the stated liquidation amount of the Preferred
Securities held by such holders.]
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ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal amount
thereof, shall be deemed to have been paid for all purposes of this Indenture,
and the entire indebtedness of the Company in respect thereof shall be satisfied
and discharged, if there shall have been irrevocably deposited with the Trustee
or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity
of such Securities or portions thereof, Eligible Obligations,
which shall not contain provisions permitting the redemption or
other prepayment thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and interest [(including
any Additional Interest)], if any, due and to become due on such Securities or
portions thereof; provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of any series or Tranche,
such Securities or portions thereof shall have been selected by the Trustee as
provided herein and, in the case of a redemption, the notice requisite to the
validity of such redemption shall have been given or irrevocable authority shall
have been given by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Eligible Obligations deposited in accordance with this
Section shall be held in trust, as provided in Section 603;
(y) if Eligible Obligations shall have been deposited,
an Opinion of Counsel to the effect that such obligations
constitute Eligible Obligations and do not contain provisions
permitting the redemption or other prepayment thereof at the
option of the issuer thereof, and an opinion of an independent
public accountant of nationally recognized standing, selected by
the Company, to the effect that the other requirements set forth
in clause (b) and (c) above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate stating the
Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon Company Request, acknowledge in
writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture and that the entire indebtedness of the
Company in respect thereof has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions set forth in the preceding
paragraph shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate specified in
clause (z) (if otherwise required) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to have been paid
for all purposes of this Indenture, and the Holders of such Securities or
portions thereof shall nevertheless be no longer entitled to the benefits
provided by this Indenture or of any of the
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covenants of the Company under Article Six (except the covenants contained in
Sections 602 and 603) or any other covenants made in respect of such Securities
or portions thereof as contemplated by Section 301 or Section 1201(b), but the
indebtedness of the Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged prior to Maturity for
any other purpose; and, upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the Securities
of any series, or any Tranche thereof, is to be provided for in the manner and
with the effect provided in this Section, the Trustee shall select such
Securities, or portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the Securities of a
series or Tranche.
In the event that Securities which shall be deemed to have been
paid for purposes of this Indenture, and, if such is the case, in respect of
which the Company's indebtedness shall have been satisfied and discharged, all
as provided in this Section, do not mature and are not to be redeemed within the
sixty (60) day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a notice of redemption with
respect to such Securities, to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been
paid for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections 304, 305,
306, 404, 602, 603, 907 and 914 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on or
assessed against such Eligible Obligations or the principal or interest received
in respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any
time after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied and discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, (i) shall be required to return the money or
Eligible Obligations, or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable Federal or State
bankruptcy, insolvency or other similar law, or (ii) are unable to apply any
money in accordance with this Article with respect to any Securities by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, such Security shall
thereupon be deemed retroactively not to have been paid and any satisfaction and
discharge of the Company's indebtedness in respect thereof shall retroactively
be deemed not to have been effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the Company's indebtedness
in respect of any Security shall be subject to the provisions of the last
paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute such instruments as the Company shall
reasonably request to evidence and acknowledge the satisfaction and discharge of
this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
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provided, however, that if, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture
as aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 404, 602, 603, 907 and 914 and this Article shall survive.
Upon satisfaction and discharge of this Indenture as provided in
this Section, the Trustee shall turn over to the Company any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Securities (other than money and Eligible Obligations held by the
Trustee pursuant to Section 703) and shall execute and deliver to the Company
such instruments as, in the judgment of the Company, shall be necessary,
desirable or appropriate to effect or evidence the satisfaction and discharge of
this Indenture.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant
to Section 701, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of and premium, if any, and
interest, if any, on the Securities or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to the provisions
of Section 603; provided, however, that any cash received from such principal or
interest payments on such Eligible Obligations, if not then needed for such
purpose, shall, to the extent practicable and upon Company Request and delivery
to the Trustee of the documents referred to in clause (y) in the first paragraph
of Section 701, be invested in Eligible Obligations of the type described in
clause (b) in the first paragraph of Section 701 maturing at such times and in
such amounts as shall be sufficient, together with any other moneys and the
proceeds of any other Eligible Obligations then held by the Trustee, to pay when
due the principal of and premium, if any, and interest, if any, due and to
become due on such Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid over to the
Company as received, free and clear of any trust, lien or pledge under this
Indenture (except the lien provided by Section 907); and provided, further, that
any moneys held in accordance with this Section on the Maturity of all such
Securities in excess of the amount required to pay the principal of and premium,
if any, and interest, if any, then due on such Securities shall be paid over to
the Company free and clear of any trust, lien or pledge under this Indenture
(except the lien provided by Section 907); and provided, further, that if an
Event of Default shall have occurred and be continuing, moneys to be paid over
to the Company pursuant to this Section shall be held until such Event of
Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) default in the payment of any interest [, including
any Additional Interest,] on any Security of such series when it
becomes due and payable [(whether or not payment is prohibited by
the subordination provisions of Article Fifteen)] and continuance
of such default for a period of 30 days; [provided, however, that
a valid extension of the interest payment period by the Company as
contemplated in Section 312 of this Indenture shall not constitute
a default in the payment of interest for this purpose;] or
(b) default in the payment of the principal of or
premium, if any, on any Security of such series when it becomes
due and payable [(whether or not payment is prohibited by the
subordination provisions of Article Fifteen)]; or
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(c) default in the performance of, or breach of, any
covenant or warranty of the Company in this Indenture (other than
a covenant or warranty a default in the performance of which or
breach of which is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely
for the benefit of one or more series of Securities other than
such series) and continuance of such default or breach for a
period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder,
unless the Trustee, or the Trustee and the Holders of a principal
amount of Securities of such series not less than the principal
amount of Securities the Holders of which gave such notice, as the
case may be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the Trustee, or
the Trustee and the Holders of such principal amount of Securities
of such series, as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action is initiated
by the Company or the Guarantor within such period and is being
diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the Company as
bankrupt or insolvent, or approving as properly filed a petition
by one or more Persons other than the Company seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and any such decree or order for
relief or any such other decree or order shall have remained
unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company to the entry of a decree or order for
relief in respect of the Company in a case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or the filing by
the Company of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State
law, or the consent by the Company to the filing of such petition
or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its
property, or the making by the Company of an assignment for the
benefit of creditors, or the admission by the Company in writing
of its inability to pay its debts generally as they become due, or
the authorization of such action by the Board of Directors of the
Company; or
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities of such series to be
due and payable immediately (provided that the payment of principal and interest
on such Securities shall remain subordinated to the extent provided in this
Indenture), by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon receipt by the Company of notice of such declaration such
principal amount (or specified amount) shall become immediately due and payable;
provided, however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, may make
such
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declaration of acceleration, and not the Holders of the Securities of any one of
such series (provided that the payment of principal and interest on such
Securities shall remain subordinated to the extent provided in this Indenture).
At any time after such a declaration of acceleration with respect
to Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, such declaration and its consequences
shall, without further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest [including Additional
Interest], if any, on all Securities of such series then
Outstanding;
(2) the principal of and premium, if any, on any
Securities of such series then Outstanding which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities;
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or
rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section
907;
and
(b) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of
Securities of such series which shall have become due solely by
such declaration of acceleration, shall have been cured or waived
as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section
801 shall have occurred, the Company shall, upon demand of the Trustee, pay to
it, for the benefit of the Holders of the Securities of the series with respect
to which such Event of Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premium, if any, and interest,
if any, and, to the extent permitted by law, interest on premium, if any, and on
any overdue principal and interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series
shall have occurred and be continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for amounts due to the
Trustee under Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, be a member of a
creditors' or similar other committee.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture, the
Securities or the Guarantees endorsed thereon 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, be for the ratable benefit of the Holders in respect of
which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, to the extent permitted by law, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit of which such money
shall have been collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
907;
SECOND: Subject to the provisions of Article Fifteen, to the
payment of the amounts then due and unpaid upon the Securities for
principal of and premium, if any, and interest [including Additional
Interest], if any, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively;
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THIRD: To the payment of the remainder, if any, to the Company or
to whomsoever may be lawfully entitled to receive the same or as a court
of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of 25% in aggregate principal amount of
the Outstanding Securities of all series in respect of which an
Event of Default shall have occurred and be continuing, considered
as one class, shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
shall have been given to the Trustee during such 60-day period by
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event
of Default shall have occurred and be continuing, considered as
one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to Section
307 [and 312]) interest [including Additional Interest], if any, on such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder. [In addition, in the case of Securities of a series
held by a Trust, a holder of Preferred Trust Securities may directly institute a
proceeding for enforcement of payment to such holder of principal of or interest
on the Securities having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Trust Securities of such holder on or after
the due dates specified or provided for in the Securities.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
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SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section 306,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal amount
of the Outstanding Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, shall
have the right to make such direction, and not the Holders of the Securities of
any one of such series; and provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve the
Trustee in personal liability in circumstances where indemnity
would not, in the Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest [including Additional Interest], if any, on any
Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
; provided, however, that so long as a Trust holds the Securities of any series,
such Trust may not waive any past default without the consent of at least a
majority in aggregate liquidation preference of the outstanding Preferred
Securities issued by such Trust affected, obtained as provided in the Trust
Agreement pertaining to such Trust. Any such waiver by holders of a majority in
aggregate liquidation preference of outstanding Preferred Securities issued by
any such Trust shall be deemed to be on behalf of all holders of Preferred
Securities issued by any such Trust.]
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Upon any such waiver, such default shall cease to exist, and any
and all Events of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, in each case
in the manner, to the extent, and subject to the exceptions provided in the
Trust Indenture Act; provided, that the provisions of this Section shall not be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.
SECTION 815. WAIVER OF USURY, 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 usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and each of the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee shall exercise,
with respect to Securities of such series, such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any one or more series, as provided herein,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities of such
series in the manner and to the extent required to do so by the Trust Indenture
Act, unless such default shall have been cured or waived; provided, however,
that in the case of any default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time, or both, would become, an
Event of Default with respect to the Securities of such series.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, or as otherwise expressly provided herein, and any
resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution thereof;
(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 Officer's Certificate of the Company;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the
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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 (subject to applicable legal requirements)
be entitled to examine, during normal business hours, 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; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default with respect to the Securities of any series
for which it is acting as Trustee unless either (1) a Responsible
Officer of the Trustee assigned to the Corporate Trustee
Administration Department and agency group of the Trustee (or any
successor division or department of the Trustee) shall have actual
knowledge of the Event of Default or (2) written notice of such
Event of Default shall have been given to the Trustee by the
Company or any other obligor on such Securities, or by any Holder
of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities endorsed
thereon (except the Trustee's certificates of authentication) shall be taken as
the statements of the Company, as the case may be, and neither the Trustee nor
any Authenticating Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities endorsed thereon. Neither Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities [and/or
Preferred Securities] and, subject to Sections 908 and 913, may otherwise deal
with the Company with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The Trustee
shall be under no liability for interest on or investment of any money received
by it hereunder except as expressly provided herein or otherwise agreed with,
and for the sole benefit of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company agrees
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(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith; and
(c) to indemnify the Trustee and hold it harmless from
and against, any loss, liability or expense reasonably incurred
without negligence, willful misconduct or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company
and the Guarantor under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
other than property and funds held in trust under Section 703 (except moneys
payable to the Company as provided in Section 703).
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of (i) the Securities
of any other series, (ii) the Trust Agreement and the Trust Securities Guarantee
Agreement pertaining to each Trust [OTHERS].
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws
of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by Federal, State or District of Columbia authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person organized
and doing business under the laws of a foreign government, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional trustees
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section and the Trust Indenture Act, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 911 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee, the
Company [; provided that so long as any Preferred Securities remain outstanding,
the Trust which issued such Preferred Securities shall not execute any Act to
remove the Trustee without the consent of the holders of a majority in aggregate
liquidation preference of Preferred Securities issued by such Trust outstanding,
obtained as provided in the Trust Agreement pertaining to such Trust.]
(d) If at any time:
(1) the Trustee shall fail to comply with Section
908 after written request therefor by the Company or by any
Holder who has been a bona fide Holder for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 909 or Section 310(a) of the Trust Indenture Act
and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by Board Resolutions may remove the
Trustee with respect to all Securities or (y) subject to Section 814, any Holder
who has been a bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause
(other than as contemplated by clause (y) in subsection (d) or this Section),
with respect to the Securities of one or more series, the Company, by Board
Resolutions, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time (subject to Section 915) there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six
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months may, on behalf of itself 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) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities pursuant to
subsection (e) of this Section, if the Company shall have delivered to the
Trustee (i) Board Resolutions of the Company appointing a successor Trustee,
effective as of a date specified therein, and (ii) an instrument of acceptance
of such appointment, effective as of such date, by such successor Trustee in
accordance with Section 911, the Trustee shall be deemed to have resigned as
contemplated in subsection (b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and all other provisions of
this Section and Section 911 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with this
subsection (f).
(g) 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 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee, upon payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company
shall execute any instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company, the Guarantor or such
other obligor. For purposes of Section 311(b) of the Trust Indenture Act (a) the
term "cash transaction" shall have the meaning provided in Rule 11b-4 under the
Trust Indenture Act, and (b) the term "self-liquidating paper" shall have the
meaning provided in Rule 11b-6 under the Trust Indenture Act.
SECTION 914. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, or any Tranche thereof, which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series or Tranche issued upon original issuance, exchange, registration
of transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. 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 or territory thereof
or the District of Columbia or the Commonwealth of Puerto Rico, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $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.
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An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee, and 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 the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
Unless appointed at the request of the Company pursuant to the
last paragraph of this Section 914, the Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for its services
under this Section, and the Trustee shall be entitled to be reimbursed for such
payments, in accordance with and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------------
As Trustee
By
-----------------------------------
As Authenticating Agent
By
-----------------------------------
Authorized Officer
If all of the Securities of a series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
SECTION 915. CO-TRUSTEE AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee shall
have power to appoint, and, upon the written request of the Trustee or of the
Holders of at least 33% in principal amount of the Securities then Outstanding,
the Company shall for such purpose join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper to appoint, one
or more Persons approved by the Trustee either to act as co-trustee, jointly
with the Trustee, or to act as separate trustee, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such Person
or Persons, in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Company does not join in such appointment within 15 days
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after the receipt by it of a request so to do, or if an Event of Default shall
have occurred and be continuing, the Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee to more fully confirm to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Company, as the case may be.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
conditions:
(a) the Securities shall be authenticated and delivered, and
all rights, powers, duties and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised solely, by
the Trustee;
(b) the rights, powers, duties and obligations hereby conferred
or imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed either
by the Trustee or by the Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, if an Event of Default shall have occurred and be continuing, the Trustee
shall have power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with the Trustee in the execution
and delivery of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or any other
such trustee hereunder, and the Trustee shall not be personally liable by reason
of any act or omission of any such co-trustee or separate trustee; and
(e) any Act of Holders delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31 in each year,
and at such other times as the Trustee may request in writing, the Company shall
furnish or cause to be furnished to the Trustee information as to the names and
addresses of the Holders, and the Trustee shall preserve such information and
similar information received by it in any other capacity and afford to the
Holders access to information so preserved by it, all to such extent, if any,
and in such manner as shall be required by the Trust Indenture Act; provided,
however, that no such list need be furnished so long as the Trustee shall be the
Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
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 time and in the manner provided
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pursuant thereto. Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than November 15 in each
calendar year with respect to the 12-month period ending on the preceding
September 15 commencing September 15, 200_. A copy of each such report shall, at
the time of such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any Securities are
listed on any stock exchange.
The Company shall file with the Trustee (within thirty (30) days
after filing with the Commission in the case of reports that pursuant to the
Trust Indenture Act must be filed with the Commission and furnished to the
Trustee) and transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be required by the
Trust Indenture Act.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless
(a) the Person formed by such consolidation or into
which the Company, is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets
of the Company, substantially as an entirety shall be a Person
organized and existing under the laws of the United States, any
State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of and premium, if any,
and interest, if any, on all Outstanding Securities and the
performance of every covenant of this Indenture on the part of the
Company, to be performed or observed;
(b) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have
occurred and be continuing; and
(c) the Company, shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance or other transfer or lease
and such indenture supplemental hereto complies with this Article
and that all conditions precedent herein provided for relating to
such transactions have been complied with.
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any other Person or any conveyance or other transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor Person formed by such consolidation
or into which the Company, is merged or the Person to which such conveyance, or
other transfer or lease is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company, under this Indenture with
the same effect as if such successor Person had been named as the Company,
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
SECTION 1103. LIMITATION.
Nothing in this Indenture shall be deemed to prevent or restrict:
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(a) any consolidation or merger after the consummation
of which the Company would be the surviving or resulting entity,
(b) any conveyance or other transfer, or lease, of any
part of the properties of the Company which does not constitute
the entirety, or substantially the entirety, thereof or
(c) the approval by the Company of, or the consent by
the Company to, any consolidation or merger to which any direct or
indirect subsidiary or affiliate of the Company, may be a party or
any conveyance, transfer or lease by any such subsidiary or
affiliate of any of its assets.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities all as provided in
Article Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of the Holders of all or any series of
Securities, or any Tranche thereof or to surrender any right or
power herein conferred upon the Company (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
(c) to add any additional Events of Default with respect
to all or any series of Securities Outstanding hereunder (and if
such additional Events of Default are to be for the benefit of
less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the
benefit of such series); or
(d) to change or eliminate any provision of this
Indenture or to add any new provision to this Indenture; provided,
however, that if such change, elimination or addition shall
adversely affect the interests of the Holders of Securities of any
series or Tranche Outstanding on the date of such supplemental
indenture in any material respect, such change, elimination or
addition shall become effective with respect to such series or
Tranche only pursuant to the provisions of Section 1202 hereof or
when no Security of such series or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities of
any series; or
(f) to establish the form or terms of Securities of any
series or Tranche or any Guarantees as contemplated by Sections
201 and 301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental
thereto; or
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(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee or
co-trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a non certificated system of
registration for all, or any series or Tranche of, the Securities;
or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on all or
any series of Securities, or any Tranche thereof, shall be
payable, (2) all or any series of Securities, or any Tranche
thereof, may be surrendered for registration of transfer, (3) all
or any series of Securities, or any Tranche thereof, may be
surrendered for exchange and (4) notices and demands to or upon
the Company in respect of all or any series of Securities, or any
Tranche thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other changes to the
provisions hereof or to add other provisions with respect to
matters or questions arising under this Indenture, provided that
such other changes or additions shall not adversely affect the
interests of the Holders of Securities of any series or Tranche in
any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference or
otherwise, this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture Act, and
the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to evidence
such amendment hereof; or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be
contained herein or are contained herein to reflect any provision
of the Trust Indenture Act as in effect at such date, this
Indenture shall be deemed to have been amended to effect such
changes or elimination, and the Company, the Guarantor and the
Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to this Indenture to effect such
changes or elimination or evidence such amendment.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1201, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series then Outstanding under this Indenture, considered as
one class, by Act of said Holders delivered to the Company and the Trustee, the
Company and the Guarantor, when authorized by Board Resolutions, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate
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principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of each series or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on (except as provided
in Section 312 hereof), any Security (other than pursuant to the
terms thereof), or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of interest
thereon) or change the method of calculating such rate or reduce
any premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802, or change the coin or currency
(or other property), in which any Security or any premium or the
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series [(or, if applicable, in
liquidation preference of any series of Preferred Securities)] or
any Tranche thereof, the consent of the Holders of which is
required for any such supplemental indenture, or the consent of
the Holders of which is required for any waiver of compliance with
any provision of this Indenture or of any default hereunder and
its consequences, or reduce the requirements of Section 1304 for
quorum or voting, or
(c) modify any of the provisions of this Section,
Section 606 or Section 813 with respect to the Securities of any
series or any Tranche thereof, except to increase the percentages
in principal amount referred to in this Section or such other
Sections or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 911(b)
and 1201(h).
[Notwithstanding the foregoing, so long as any of the Preferred Securities
remain outstanding, the Trustee may not consent to a supplemental indenture
under this Section 1202 without the prior consent, obtained as provided in a
Trust Agreement pertaining to a Trust which issued such Preferred Securities, of
the holders of not less than a majority in aggregate liquidation preference of
all Preferred Securities issued by such Trust affected, considered as one class,
or, in the case of changes described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred Securities then
outstanding which would be affected thereby, considered as one class.] A
supplemental indenture which (x) changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of the Holders of, or which is to remain in effect only so long as there
shall be Outstanding, Securities of one or more particular series, or one or
more Tranches thereof, or (y) modifies the rights of the Holders of Securities
of such series or Tranches with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act 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 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
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SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, authenticated
and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company, and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular series of
Securities shall have been established in or pursuant to a Board Resolution or
an Officer's Certificate pursuant to a supplemental indenture or Board
Resolution as contemplated by Section 301, and not in an indenture supplemental
hereto, additions to, changes in or the elimination of any of such terms may be
effected by means of a supplemental Board Resolution or Officer's Certificate,
as the case may be, delivered to, and accepted by, the Trustee; provided,
however, that such supplemental Board Resolution or Officer's Certificate shall
not be accepted by the Trustee or otherwise be effective unless all conditions
set forth in this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a supplemental indenture
shall have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's Certificate shall
be deemed to be a "supplemental indenture" for purposes of Section 1204 and
1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 1301, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the Trustee shall
determine, or, with the approval of the Company, at any other place. Notice of
every such meeting, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
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(b) If the Trustee shall have been requested to call a meeting
of the Holders of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, by the Company, the Guarantor or by the Holders of 33% in
aggregate principal amount of all of such series and Tranches, considered as one
class, for any purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company, the Guarantor or the Holders of
Securities of such series and Tranches in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or in such other place as shall be determined or approved
by the Company or the Guarantor, for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid without notice
if the Holders of all Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the Company, the
Guarantor and the Trustee are present, or if notice is waived in writing before
or after the meeting by the Holders of all Outstanding Securities of such
series, or by such of them as are not present at the meeting in person or by
proxy, and by the Company, the Guarantor and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
one or more, or all, series, or any Tranche or Tranches thereof, a Person shall
be (a) a Holder of one or more Outstanding Securities of such series or
Tranches, or (b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who shall be entitled to
attend any meeting of Holders of Securities of any series or Tranche shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and the Guarantor and their counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with respect to
which a meeting shall have been called as hereinbefore provided, considered as
one class, shall constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action is to be taken
at such meeting which this Indenture expressly provides may be taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series and Tranches, considered as
one class, shall constitute a quorum. In the absence of a quorum within one hour
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series and Tranches, be dissolved.
In any other case the meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Except as provided by Section 1305(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as provided in Section
1302(a) not less than ten days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series and Tranches which shall constitute
a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly
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reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders
of Securities duly held in accordance with this Section shall be binding on all
the Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the Securities with
respect to which it was given unless and until specifically revoked by the
Holder or future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in Section 1302(b), in which case the
Company or the Holders of Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to
one vote for each $1,000 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a
quorum is present may be adjourned from time to time by Persons entitled to vote
a majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of the
Holders or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities, of the series and Tranches with
respect to which the meeting shall have been called, held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports of all votes cast at the meeting. A record, in
duplicate, of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was given
as provided in Section 1302 and, if applicable, Section 1304. Each
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copy shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one such copy shall be delivered to the
Company, and another to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
ARTICLE FOURTEEN
[INTENTIONALLY OMITTED]
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS OF
THE COMPANY.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of the Securities of each series, by its acceptance
thereof, likewise covenants and agrees, that the payment of the principal of and
premium, if any, and interest, if any, on each and all of the Securities is
hereby expressly subordinated and subject to the extent and in the manner set
forth in this Article, in right of payment to the prior payment in full of all
Senior Indebtedness of the Company.
Each Holder of the Securities of each series, by its acceptance
thereof, authorizes and directs the Trustee on its behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy proceedings or
any receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 1503, that (i) a default shall have occurred with respect
to the payment of principal of or interest on or other monetary amounts due and
payable on any Senior Indebtedness of the Company, or (ii) there shall have
occurred a default (other than a default in the payment of principal or interest
or other monetary amounts due and payable) in respect of any Senior Indebtedness
of the Company, as defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to accelerate the maturity
thereof (with notice or lapse of time, or both), and such default shall have
continued beyond the period of grace, if any, in respect thereof, and, in the
cases of subclauses (i) and (ii) of this clause (b), such default shall not have
been cured or waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest on the Securities of any series shall have
been declared due and payable pursuant to Section 801 and such declaration shall
not have been rescinded and annulled as provided in Section 802, then:
(1) the holders of all Senior Indebtedness of the
Company shall first be entitled to receive payment of the
full amount due thereon, or provision shall be made for
such payment in money or money's worth, before the Holders
of any of the Securities are entitled to receive a payment
on account of the principal of or interest on the
indebtedness evidenced by the Securities, including,
without limitation, any payments made pursuant to Articles
Four and Five;
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(2) any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, to which any Holder or the Trustee
would be entitled except for the provisions of this
Article, shall be paid or delivered by the Person making
such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness of the
Company or their representative or representatives or to
the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness of
the Company may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of such
Senior Indebtedness of the Company held or represented by
each, to the extent necessary to make payment in full of
all Senior Indebtedness of the Company remaining unpaid
after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders of such
Senior Indebtedness of the Company, before any payment or
distribution is made to the Holders of the indebtedness
evidenced by the Securities or to the Trustee under this
Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, in respect of principal of or
interest on the Securities or in connection with any
repurchase by the Company of the Securities, shall be
received by the Trustee or any Holder before all Senior
Indebtedness of the Company is paid in full, or provision
is made for such payment in money or money's worth, such
payment or distribution in respect of principal of or
interest on the Securities or in connection with any
repurchase by the Company of the Securities shall be paid
over to the holders of such Senior Indebtedness of the
Company or their representative or representatives or to
the trustee or trustees under any indenture under which any
instruments evidencing any such Senior Indebtedness of the
Company may have been issued, ratably as aforesaid, for
application to the payment of all Senior Indebtedness of
the Company remaining unpaid until all such Senior
Indebtedness of the Company shall have been paid in full,
after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders of such
Senior Indebtedness of the Company.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Eligible Obligations pursuant to
Section 701 or 702 (provided all conditions set out in such Section shall have
been satisfied), the funds so deposited and any interest thereon will not be
subject to any rights of holders of Senior Indebtedness of the Company
including, without limitation, those arising under this Article Fifteen;
provided that no event described in clauses (e) and (f) of Section 801 with
respect to the Company has occurred during such 123-day period.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan or reorganization or readjustment which are subordinate
in right of payment to all Senior Indebtedness of the Company which may at the
time be outstanding to the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. The consolidation of
the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Eleven hereof
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eleven hereof. Nothing in Section 1501 or in this Section 1502
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS OF
THE COMPANY.
Any failure by the Company to make any payment on or perform any
other obligation in respect of Senior Indebtedness of the Company, other than
any indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or
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refunding thereof) or any other obligation as to which the provisions of this
Section shall have been waived by the Company in the instrument or instruments
by which the Company incurred, assumed, guaranteed or otherwise created such
indebtedness or obligation, shall not be deemed a default under clause (b) of
Section 1502 if (i) the Company shall be disputing its obligation to make such
payment or perform such obligation and (ii) either (A) no final judgment
relating to such dispute shall have been issued against the Company which is in
full force and effect and is not subject to further review, including a judgment
that has become final by reason of the expiration of the time within which a
party may seek further appeal or review, or (B) in the event that a judgment
that is subject to further review or appeal has been issued, the Company shall
in good faith be prosecuting an appeal or other proceeding for review and a stay
or execution shall have been obtained pending such appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness of the Company shall not be deemed to have
been paid in full unless the holders thereof shall have received cash (or
securities or other property satisfactory to such holders) in full payment of
such Senior Indebtedness of the Company then outstanding. Upon the payment in
full of all Senior Indebtedness of the Company, the rights of the Holders of the
Securities shall be subrogated to the rights of the holders of Senior
Indebtedness of the Company to receive any further payments or distributions of
cash, property or securities of the Company applicable to the holders of the
Senior Indebtedness of the Company until all amounts owing on the Securities
shall be paid in full; and such payments or distributions of cash, property or
securities received by the Holders of the Securities, by reason of such
subrogation, which otherwise would be paid or distributed to the holders of such
Senior Indebtedness of the Company shall, as between the Company, its creditors
other than the holders of Senior Indebtedness of the Company, and the Holders,
be deemed to be a payment by the Company to or on account of Senior Indebtedness
of the Company, it being understood that the provisions of this Article are and
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior Indebtedness of the
Company, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness of the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of Senior Indebtedness of the Company, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness of the Company in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets or securities of the
Company referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization proceedings
are pending for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness of the Company and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon, and all other facts pertinent
thereto or to this Article.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a representative of such holder or a trustee
under any indenture under which any instruments evidencing any such Senior
Indebtedness of the Company may have been issued) to establish that such notice
has been given by a holder of such Senior Indebtedness of the Company or such
representative or trustee on behalf of such holder. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness of the Company held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the right of such
Person under this Article, and, if such evidence is not
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furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment or
distribution.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS OF THE COMPANY
UPON MATURITY.
Upon the maturity of the principal of any Senior Indebtedness of
the Company by lapse of time, acceleration or otherwise, all matured principal
of Senior Indebtedness of the Company and interest and premium, if any, thereon
shall first be paid in full before any payment of principal or premium, if any,
or interest, if any, is made upon the Securities or before any Securities can be
acquired by the Company or any sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may be reduced by
Securities acquired before such maturity of such Senior Indebtedness of the
Company).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS OF THE COMPANY.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness of the Company at any time held
by it, to the same extent as any other holder of Senior Indebtedness of the
Company. Nothing in this Article shall deprive the Trustee of any of its rights
as such holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee shall have received
written notice thereof from the Company, from a Holder or from a holder of any
Senior Indebtedness of the Company or from any representative or representatives
of such holder or any trustee or trustees under any indenture under which any
instruments evidencing any such Senior Indebtedness of the Company may have been
issued and, prior to the receipt of any such written notice, the Trustee shall
be entitled, subject to Section 901, in all respects to assume that no such
facts exist; provided, however, that, if prior to the fifth Business Day
preceding the date upon which by the terms hereof any such moneys may become
payable for any purpose, or in the event of the execution of an instrument
pursuant to Section 701 or 702 acknowledging that Securities or portions thereof
are deemed to have been paid for all purposes of this Indenture, acknowledging
that the entire indebtedness of the Company in respect thereof has been
satisfied and discharged or acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day preceding the date of such
execution, the Trustee shall not have received with respect to such moneys the
notice provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee may, in its discretion, receive such
moneys and/or apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which may be received by it
on or after such date; provided, however, that no such application shall affect
the obligations under this Article of the persons receiving such moneys from the
Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR INDEBTEDNESS OF
THE COMPANY.
The holders of Senior Indebtedness of the Company may, without
affecting in any manner the subordination of the payment of the principal of and
premium, if any, and interest, if any, on the Securities, at any time or from
time to time and in their absolute discretion, agree with the Company to change
the manner, place or terms of payment, change or extend the time of payment of,
or renew or alter, any Senior Indebtedness of the Company, or amend or
supplement any instrument pursuant to which any Senior Indebtedness of the
Company is issued, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness of the Company including, without
limitation, the waiver of default thereunder, all without notice to or assent
from the Holders or the Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
INDEBTEDNESS OF THE COMPANY.
With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no
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implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company, and shall not be liable to any
such holders if it shall mistakenly pay over or deliver to the Holders or the
Company or any other Person, money or assets to which any holders of Senior
Indebtedness of the Company shall be entitled by virtue of this Article or
otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Sections 1507, 1508 and 1510 shall not apply to the Company if it
acts as Paying Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS OF THE
COMPANY NOT IMPAIRED.
No right of any present or future holder of Senior Indebtedness of
the Company to enforce the subordination herein shall at any time or in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the contrary, other
than as provided in the immediately succeeding sentence, all the provisions of
this Indenture shall be subject to the provisions of this Article, so far as the
same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness of the Company, if the Company shall have
delivered to the Trustee a notice to such effect. Any such notice delivered by
the Company shall not be deemed to be a supplemental indenture for purposes of
Article Twelve.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1601. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities or for any claim based
thereon or otherwise in respect thereof, or of the indebtedness represented
thereby, or upon any obligation, covenant or agreement under this Indenture,
against any incorporator, stockholder, officer or director, as such, past,
present or future of the Company or of any predecessor or successor of either of
them (either directly or through the Company, as the case may be, or a
predecessor or successor of either of them), whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities and Guarantees are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or director, past, present
or future, of the Company or of any predecessor or successor corporation, either
directly or indirectly through the Company or any predecessor or successor of
either of them, because of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom or therefrom,
and that any such personal liability is hereby expressly waived and released as
a condition of, and as part of the consideration for, the execution of this
Indenture and the issuance of the Securities.
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-------------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
SOUTHWESTERN ELECTRIC POWER COMPANY
By:
-----------------------------
Name:
Title:
[SEAL]
ATTEST:
------------------------------
THE BANK OF NEW YORK
as Trustee
By:
-----------------------------
Name:
Title:
[SEAL]
ATTEST:
------------------------------
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