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THE WASHINGTON WATER POWER COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
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INDENTURE
DATED AS OF 1, 1997
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THE WASHINGTON WATER POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF , 1997
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TRUST INDENTURE ACT SECTION INDENTURE SECTION(S)
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310(a)(1) . . . . . . . . . . . . . . . 809
(a)(2) . . . . . . . . . . . . . . . . . . . 809
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 808, 810
311(a) . . . . . . . . . . . . . . . . . 813
(b) . . . . . . . . . . . . . . . . . . . 813
(c) . . . . . . . . . . . . . . . . . . . 813
312(a) . . . . . . . . . . . . . . . . . 901
(b) . . . . . . . . . . . . . . . . . . . 901
(c) . . . . . . . . . . . . . . . . . . . 901
313(a) . . . . . . . . . . . . . . . . . 902
(b) . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . 902
(d) . . . . . . . . . . . . . . . . . . . 902
314(a) . . . . . . . . . . . . . . . . . 902, 507
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 102
315(a) . . . . . . . . . . . . . . . . . 801, 803
(b) . . . . . . . . . . . . . . . . . . . 802
(c) . . . . . . . . . . . . . . . . . . . 801
(d) . . . . . . . . . . . . . . . . . . . 801
(e) . . . . . . . . . . . . . . . . . . . 714
316(a) . . . . . . . . . . . . . . . . . 712, 713
(a)(1)(A) . . . . . . . . . . . . . . . . . . . 702, 712
(a)(1)(B) . . . . . . . . . . . . . . . . . . . 713
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 708
(c) . . . . . . . . . . . . . . . . . . . 104
317(a)(1) . . . . . . . . . . . . . . . 703
(a)(2) . . . . . . . . . . . . . . . . . . . 705
(b) . . . . . . . . . . . . . . . . . . . 503
318(a) . . . . . . . . . . . . . . . . . 107
TABLE OF CONTENTS
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PAGE
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Recital of the Company . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101.General Definitions . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . 3
Company Order or Company Request . . . . . . 3
Corporate Trust Office . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . 3
Interest . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . 4
Fair Value . . . . . . . . . . . . . . . . . 4
Governmental Authority . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . 4
Independent Expert's Certificate . . . . . . 4
Interest Payment Date . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . 5
Notice of Default . . . . . . . . . . . . . . 5
Officer's Certificate . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . 7
Security Register . . . . . . . . . . . . . . 7
Security Registrar . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . 7
Successor . . . . . . . . . . . . . . . . . . 8
Tranche . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . 8
United States . . . . . . . . . . . . . . . . 8
Unpaid Interest . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and
Opinions . . . . . . . . . . . . 8
SECTION 103. Content and Form of Documents
Delivered to Trustee . . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . 10
SECTION 105. Notices, Etc. to Trustee and
Company . . . . . . . . . . . . . 12
SECTION 106. Notice to Holders of Securities;
Waiver . . . . . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act 13
SECTION 108. Effect of Headings and Table of
Contents . . . . . . . . . . . . 13
SECTION 109. Successors and Assigns . . . . . . 13
SECTION 110. Separability Clause . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . 14
SECTION 113. Legal Holidays . . . . . . . . . . 14
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . 15
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in
Series . . . . . . . . . . . . . 15
SECTION 302. Denominations . . . . . . . . . . 19
SECTION 303. Execution, Dating, Certificate of
Authentication . . . . . . . . . 19
SECTION 304. Temporary Securities . . . . . . . 22
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . 24
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . 25
SECTION 308. Persons Deemed Owners . . . . . . 26
SECTION 309. Cancellation by Security Xxxxxxxxx 00
SECTION 310. Computation of Interest . . . . . 27
SECTION 311. Payment to Be in Proper Currency . 27
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. Applicability of Article . . . . . 27
SECTION 402. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . 27
SECTION 403. Selection of Securities to Be
Redeemed . . . . . . . . . . . . 28
SECTION 404. Notice of Redemption . . . . . . . 28
SECTION 405. Securities Payable on Redemption
Date . . . . . . . . . . . . . . 30
SECTION 406. Securities Redeemed in Part . . . 30
ARTICLE FIVE
COVENANTS
SECTION 501. Payment of Securities. . . . . . . 30
SECTION 502. Maintenance of Office or Agency . 31
SECTION 503. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . 31
SECTION 504. Corporate Existence . . . . . . . 33
SECTION 505. Maintenance of Properties . . . . 33
SECTION 506. Waiver of Certain Covenants . . . 33
SECTION 507. Annual Officer's Certificate as to
Compliance. . . . . . . . . . . . 34
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of
Securities . . . . . . . . . . . 34
SECTION 602. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . 37
SECTION 603. Application of Trust Money . . . . 37
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. Events of Default . . . . . . . . 38
SECTION 702. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . 40
SECTION 703. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . 41
SECTION 704. Application of Money Collected . . 42
SECTION 705. Trustee May File Proofs of Claim . 42
SECTION 706. Trustee May Enforce Claims without
Possession of Securities . . . . 43
SECTION 707. Limitation on Suits . . . . . . . 43
SECTION 708. Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . 44
SECTION 709. Restoration of Rights and Remedies 44
SECTION 710. Rights and Remedies Cumulative . . 44
SECTION 711. Delay or Omission Not Waiver . . . 45
SECTION 712. Control by Holders of Securities . 45
SECTION 713. Waiver of Past Defaults . . . . . 45
SECTION 714. Undertaking for Costs . . . . . . 46
SECTION 715. Waiver of Stay or Extension Laws . 46
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Certain Duties and
Responsibilities . . . . . . . . 47
SECTION 802. Notice of Defaults . . . . . . . . 48
SECTION 803. Certain Rights of Trustee . . . . 48
SECTION 804. Not Responsible for Recitals or
Issuance of Securities . . . . . 50
SECTION 805. May Hold Securities . . . . . . . 50
SECTION 806. Money Held in Trust . . . . . . . 50
SECTION 807. Compensation and Reimbursement . . 50
SECTION 808. Disqualification; Conflicting
Interests . . . . . . . . . . . . 51
SECTION 809. Corporate Trustee Required;
Eligibility . . . . . . . . . . . 51
SECTION 810. Resignation and Removal; Appointment
of Successor . . . . . . . . . . 52
SECTION 811. Acceptance of Appointment by
Successor . . . . . . . . . . . . 54
SECTION 812. Merger, Conversion, Consolidation or
Succession to Business . . . . . 55
SECTION 813. Preferential Collection of Claims
against Company . . . . . . . . . 55
SECTION 814. Appointment of Authenticating
Agent . . . . . . . . . . . . . . 56
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
SECTION 901. Lists of Holders . . . . . . . . . 58
SECTION 902. Reports by Trustee and Company . . 58
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. Company may Consolidate, etc., Only on
Certain Terms . . . . . . . . . . 59
SECTION 1002. Successor Substituted . . . . . . 60
SECTION 1003. Release of Company upon Conveyance or
Other Transfer . . . . . . . . . 60
SECTION 1004. Merger into Company . . . . . . . 60
SECTION 1005. Transfer of Less than the Entirety 60
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures without
Consent of Holders . . . . . . . 63
SECTION 1102. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . 65
SECTION 1103. Execution of Supplemental
Indentures . . . . . . . . . . . 66
SECTION 1104. Effect of Supplemental Indentures 67
SECTION 1105. Conformity with Trust Indenture
Act . . . . . . . . . . . . . . . 67
SECTION 1106. Reference in Securities to
Supplemental Indentures . . . . . 67
SECTION 1107. Modification without Supplemental
Indenture . . . . . . . . . . . . 67
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. Purposes for Which Meetings May Be
Called. . . . . . . . . . . . . . 68
SECTION 1202. Call, Notice and Place of Meetings 68
SECTION 1203. Persons Entitled to Vote at
Meetings . . . . . . . . . . . . 69
SECTION 1204. Quorum; Action . . . . . . . . . . 69
SECTION 1205. Attendance at Meetings; Determination
of Voting Rights; Conduct and
Adjournment of Meetings . . . . . 70
SECTION 1206. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . 71
SECTION 1207. Action without Meeting . . . . . . 71
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
and Directors
SECTION 1301. Liability Solely Corporate . . . . 72
Signatures . . . . . . . . . . . . . . . . . . . . . . . 73
INDENTURE, dated as of 1, 1997 between THE WASHINGTON
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WATER POWER COMPANY, a corporation organized and existing under
the laws of the State of Washington (hereinafter sometimes called
the "Company"), and The Chase Manhattan Bank, a New York banking
corporation, trustee (hereinafter sometimes called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in
one or more series as contemplated herein; all acts necessary to
make this Indenture a valid agreement of the Company have been
performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the purchase of the
Securities by the Holders thereof, it is hereby covenanted and
agreed by and between the Company and the Trustee that all the
Securities are to be authenticated and delivered subject to the
further covenants, conditions and trusts hereinafter set forth,
and the Company hereby covenants and agrees to and with the
Trustee, for the equal and ratable 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. GENERAL 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 without
definition which are defined in the Trust Indenture
Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all terms used herein without
definition which are defined in the Uniform
Commercial Code as in effect in any jurisdiction in
which any property of the Company is located shall
have the meanings assigned to them therein with
respect to such property;
(d) all accounting terms not otherwise
defined herein have the meanings assigned to them
in accordance with generally accepted accounting
principles in the United States; 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 at the
date of such computation or, at the election of the
Company from time to time, at the date of the
execution and delivery of this Indenture; provided,
however, that in determining generally accepted
accounting principles applicable to the Company,
effect shall be given, to the extent required, to
any order, rule or regulation of any administrative
agency, regulatory authority or other governmental
body having jurisdiction over the Company; 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.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "CONTROL" when used
with respect to any specified Person means the power to direct
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 (other than
the Company or an Affiliate of the Company) 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 the
Corporate Secretary or any other duly authorized officer, agent
or attorney-in-fact of the Company named in an Officer's
Certificate signed by any of such corporate officers.
"BOARD OF DIRECTORS" means either the board of
directors of the Company or any committee thereof duly authorized
to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution
certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place
of Payment or any other particular location specified in the
Securities 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
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of the 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.
"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" means a
written request or order 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 the execution and delivery of this Indenture is located
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"CORPORATION" means a corporation, association,
company, joint stock company or business trust.
"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 702. "INTEREST" with
respect to a Discount Security means interest, if any, borne by
such Security at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States 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 701.
"FAIR VALUE" has the meaning specified in Section
1005.
"GOVERNMENTAL AUTHORITY" means the government of
the United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department, agency,
authority or other instrumentality of any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations
the principal of and interest on which are
unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and
credit thereof; and
(b) certificates, depositary receipts or
other instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or State
supervision or examination with a combined capital
and surplus of at least Fifty Million Dollars
($50,000,000); and provided, further, that except
as may be otherwise required by law, such custodian
shall be obligated to pay to the holders of such
certificates, depositary receipts or other instru-
ments the full amount received by such custodian in
respect of such obligations or specific payments
and shall not be permitted to make any deduction
therefrom.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally
executed and delivered and as it may from time to time be amended
and/or supplemented by one or more indentures or other
instruments supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by
Section 301.
"INDEPENDENT EXPERT'S CERTIFICATE" has the meaning
specified in Section 1005.
"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" has the meaning specified in
Section 701.
"OFFICER'S CERTIFICATE" means a certificate signed
by an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company or other counsel
acceptable to the Trustee and who may be an employee or Affiliate
of the Company.
"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 601 (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 or purchasers 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 or made 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 obligor or such Affiliate 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, 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; and
(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 702; and
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,
all as contemplated in Section 301 and clause (b) of Section 303.
"PERSON" means any individual, corporation,
partnership, limited liability partnership, limited liability
company, joint venture, trust or unincorporated organization or
any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the
Securities of any series, or any Tranche thereof, means the place
or places, specified as contemplated by Section 301, at which,
subject to Section 502, 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, 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
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on
any Interest Payment Date on the Securities of any series means
the date specified for that purpose as contemplated by Section
301.
"REQUIRED CURRENCY" has the meaning specified in
Section 311.
"RESPONSIBLE OFFICER", when used with respect to
the Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"SECURITIES" means any bonds, notes and other
evidences of indebtedness authenticated and delivered under this
Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have
the respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Unpaid
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 an obligation shall be made (a) if the Company's
obligations in respect of any other indebtedness shall be
evidenced or secured in whole or in part by such obligation, by
reference to the lower of the Stated Interest Rate on such
obligation and the Stated Interest Rate on such other
indebtedness and (b) without regard to the effective interest
cost to the Company of such obligation or of any such other
indebtedness.
"STATED MATURITY", when used with respect to 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).
"SUCCESSOR" has the meaning set forth in Section
1001.
"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 INDENTURE ACT" means, as of any time, the
Trust Indenture Act of 1939, or any successor statute, as in
effect at such 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 Person acting as trustee hereunder, "Trustee"
shall mean each such Person so acting.
"UNITED STATES" means the United States of America,
its Territories, its possessions and other areas subject to its
political jurisdiction.
"UNPAID INTEREST" has the meaning specified in
Section 307.
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, it being understood that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a statement that each individual
signing such certificate or opinion has read such
covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon
which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of
each such individual, such individual has made such
examination or investigation as is necessary to
enable such individual to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the
opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103. CONTENT AND 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,
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 any Person is
required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
(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 provided by this Indenture equally and ratably with
all other Outstanding Securities, except as aforesaid.
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 Twelve, 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 801) 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 1206.
(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 of Securities, the
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 or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with respect to the
requisite percentage of principal amount of Securities for the
action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of 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
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, 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 of Securities of any series entitled to
join in the giving or making of any Notice of Default, any
declaration of acceleration referred to in Section 702, any
request to institute proceedings referred to in Section 707 or
any direction referred to in Section 712, in each case with
respect to Securities of such series. 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 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 AND COMPANY.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with, 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 the same shall be 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 opposite such parties name below or as the
parties hereto shall from time to time designate, or transmitted
by registered mail, charges prepaid, to the applicable address
set opposite such party's name below or to such other address as
either party hereto may from time to time designate:
If to the Trustee, to:
If to the Company, to:
The Washington Water Power Company
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
Facsimile: (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 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 AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture
and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by
the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Securities shall be 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 and the Holders, any
benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed
by and construed in accordance with the 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 contrary provision in the 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) payment of interest
or principal and premium, if any, need not be made at such Place
of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, 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 shall be
in substantially the form or forms 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 any case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series 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.
The Securities of each series shall be issuable in
registered form without coupons. The definitive Securities shall
be produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution
thereof.
SECTION 202. FORM OF 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.
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 an Officer's
Certificate, 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 1106 and
except for any Securities which, pursuant to
Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Persons (without specific
identification) to whom interest, if any, on
Securities of such series, or any Tranche thereof,
shall be payable, if other than the Persons in
whose names such Securities (or one or more
Predecessor Securities) are 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); and the
right, if any, to extend the Maturity of the
Securities of such series, or any Tranche thereof,
and the duration of any such 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, 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
on which such interest shall be payable and the
Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment
Date; the basis of computation of interest, if
other than as provided in Section 310; and the
right, if any, to extend the interest payment
periods and the duration of any such extension;
(f) the place or places at which and/or
the 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 the
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;
(h) the obligation or obligations, if any,
of the Company to redeem or purchase 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 such Securities
shall be redeemed or purchased, 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 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 One
Thousand Dollars ($1,000) and any integral multiple
thereof;
(j) the currency or currencies, including
composite currencies, in which payment of the
principal of or premium, if any, or interest, if
any, on the Securities of such series, or any
Tranche thereof, shall be payable (if other than in
Dollars) and the formulary or other method or other
means by which the equivalent of any such amount in
Dollars is to be determined for any purpose,
including for the purpose of determining the
principal amount of such Securities deemed to be
Outstanding at any time;
(k) if the principal of or premium, if
any, or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder thereof,
in a coin or currency other than that in which the
Securities are stated to be payable, the period or
periods within which, and the terms and conditions
upon which, such election may be made;
(l) if the principal of or premium, if
any, or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company
or a Holder thereof, in securities or other
property, the type and amount of such securities or
other property, or the 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
the 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 of 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 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 ac-
celeration of the Maturity thereof pursuant to
Section 702;
(o) 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;
(p) 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 additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after
the satisfaction and discharge thereof as provided
in Section 601;
(q) 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 of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of
temporary form and (iii) any and all other matters
incidental to such Securities;
(r) 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
(f) of Section 1101;
(s) to the extent not established pursuant
to clause (q) 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;
(t) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series, or any
Tranche thereof; and
(u) 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 Officer's Certificate, the indenture
supplemental hereto or the Board Resolution which establishes
such series, 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 by
clause (b) of Section 303.
Unless otherwise specified with respect to a series
of Securities pursuant to Section 301(b), any limit upon the
aggregate principal amount of a series of Securities may be
increased without the consent of any Holders and additional
Securities of such series may be authenticated and delivered up
to the limit upon the aggregate principal amount authorized with
respect to such series as so increased.
Anything herein to the contrary notwithstanding,
the Trustee shall be under no obligation to authenticate and
deliver Securities of any series the terms of which, established
as contemplated by this Section, would affect the rights, duties,
obligations, liabilities or immunities of the Trustee under this
Indenture or otherwise.
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 One Thousand Dollars ($1,000) and any
integral multiple thereof.
SECTION 303. EXECUTION, DATING, CERTIFICATE OF AUTHENTICATION.
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, and may have the corporate
seal of the Company affixed thereto or reproduced thereon and
attested by any other Authorized Officer. The signature of any
or all of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of execution
Authorized Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
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 estab-
lishing the form or forms and terms 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 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, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect
that:
(i) the form or forms of such Securities
have been duly authorized by the Company and have
been established in conformity with the
provisions of this Indenture;
(ii) the terms of such Securities have been
duly authorized by the Company and have been
established in conformity with the provisions of
this Indenture; and
(iii) when such Securities shall have been
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, such Securities will
constitute valid obligations of the Company,
entitled to the benefits provided by this
Indenture equally and ratably with all other
Securities then Outstanding;
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 such
Securities (provided that such Opinion of Counsel
addresses the authentication and delivery of all
Securities of such series) and that, in lieu of the
opinions described in clauses (ii) and (iii) above,
Counsel may opine that:
(x) when the terms of such Securities
shall have been established pursuant to a Company
Order 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) when such Securities shall have been
authenticated and delivered by the Trustee in
accordance with this Indenture and the Company
Order or Orders or the specified procedures
referred to in paragraph (x) above and issued and
delivered by the Company in the manner and
subject to any conditions specified in such
Opinion of Counsel, such Securities will
constitute valid obligations of the Company,
entitled to the benefits provided by this
Indenture equally and ratably with all other
Securities then Outstanding.
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, the validity thereof and the compliance of the
authentication and delivery thereof with the terms and conditions
of this Indenture, upon the Opinion or Opinions of Counsel and
the certificates and other documents delivered pursuant to this
Article at or prior to the time of the first authentication and
delivery of Securities of such series until any of such opinions,
certificates 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 subject to a Periodic
Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any applicable law or any applicable
rule, regulation or order of any Governmental Authority having
jurisdiction over the Company.
If the form of 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 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.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or any
Tranche thereof, each Security shall be dated the date of its
authentication.
Unless 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 an Authenticating 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 (a) 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, (b) the Company shall
deliver such Security to the Security Registrar for cancellation
or shall cancel such Security and deliver evidence of such
cancellation to the Trustee, in each case as provided in Section
309, and (c) the Company, at its election, shall deliver to the
Trustee a written statement (which need not comply with Section
102 and need not be accompanied by an Officer's Certificate or an
Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, then, 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, photocopied or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, after the preparation of definitive Securities
of such series or Tranche, the temporary Securities of such
series or Tranche shall be exchangeable, without charge to the
Holder thereof, for definitive Securities of such series or
Tranche upon surrender of such temporary Securities at the office
or agency of the Company maintained pursuant to Section 502 in a
Place of Payment for such Securities. Upon such surrender of
temporary Securities, the Company shall, except as aforesaid,
execute and the Trustee shall authenticate and deliver in ex-
change therefor definitive Securities of the same series and
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 designated pursuant to Section 502, 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 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 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 502 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 debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security surrendered for registration of
transfer or for exchange shall (if so required by the Company,
the Trustee or the Security Registrar) be duly endorsed or shall
be accompanied by a written instrument of transfer in form sat-
isfactory to the Company, the Trustee or the Security Registrar,
as the case may be, 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 regis-
tration 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 1106 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 fifteen (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.
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 and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership of
and the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, 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, but subject to compliance with the foregoing conditions,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an 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 specified 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.
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, including without limitation interest the
payment period for which has been extended as specified with
respect to such series as contemplated by Section 301 (herein
called "UNPAID 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 Unpaid 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 Unpaid 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 (herein called a
"SPECIAL RECORD DATE") for the payment of such
Unpaid Interest, which shall be fixed in the
following manner. The Company shall notify the
Trustee in writing of the amount of Unpaid Interest
proposed to be paid on each Security of such series
and the date of the proposed payment, and at the
same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such
Unpaid Interest or shall make arrangements satis-
factory 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 Unpaid Interest as in
this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such
Unpaid Interest which shall be not more than thirty
(30) days and not less than ten (10) days prior to
the date of the proposed payment and not less than
twenty-five (25) 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, not less than
fifteen (15) days prior to such Special Record
Date, cause notice of the proposed payment of such
Unpaid 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. Notice of the proposed payment
of such Unpaid Interest and the Special Record Date
therefor having been so mailed, such Unpaid
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
Unpaid 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 the due surrender of any 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
any 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 Section 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar 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 Security Registrar.
Unless by a Company Order the Company shall direct that canceled
Securities be returned to it, all canceled Securities held by the
Security Registrar shall be disposed of in accordance with the
Security Registrar's customary procedures, and the Security
Registrar shall promptly deliver a certificate of disposition to
the Trustee and the Company. The Security Registrar shall
promptly deliver evidence of any cancellation of a Security in
accordance with this Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a three hundred sixty (360) day year consisting of
twelve (12) thirty (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.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "REQUIRED CURRENCY"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium, if
any, or interest, if any, thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay
and exchange rate fluctuation, shall be borne by the Company, the
Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful
misconduct.
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 forty-five
(45) days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the
principal amount of such Securities to be redeemed. In the case
of any redemption of Securities (a) prior to the expiration of
any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an
election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the
Trustee with an 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 Security
Registrar from the Outstanding Securities of such series or
Tranche not previously called for redemption, by such method as
shall be provided for any particular series or Tranche, or, in
the absence of any such provision, by such method of random
selection as the Security Registrar shall deem fair and
appropriate and which may, in any case, provide for the selection
for redemption of portions (in any authorized denomination for
Securities of such series or Tranche) of the principal amount of
Securities of such series or Tranche having 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 Security
Registrar, 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 Security Registrar shall promptly notify the
Company and the Trustee 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 the Securities to be
redeemed not less than thirty (30) nor more than sixty (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.
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 601, 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, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the
Holders thereof any of such Securities which had been surrendered
for payment upon such redemption.
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, upon Company Request, by the Security
Registrar in the name and at the expense of the Company. Notice
of mandatory redemption of Securities shall be given by the
Security Registrar 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
Section 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 or the Trustee, as the case may be, 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
COVENANTS
SECTION 501. PAYMENT OF SECURITIES.
The Company shall pay the principal of and premium,
if any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 502. 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,
where the 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 shall be made, registration
of transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and 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, in which event the Company shall
perform all functions to be performed at such office or agency.
SECTION 503. 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, and 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. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying
Agents for 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, and 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 sums 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 any failure by it 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 such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure
by the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of
any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent and furnish to
the Trustee such information as it possesses
regarding the names and addresses of the Persons
entitled to such sums.
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
so stated in a Company Order delivered to the Trustee, in
accordance with the provisions of Article Six; 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, if any, 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, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as the
Holder of an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining unpaid,
and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make
any such payment to the Company, may at the expense of the
Company cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days
from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
SECTION 504. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article
Ten, the Company shall do or cause to be done all things
necessary to preserve and keep its corporate existence in full
force and effect.
SECTION 505. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable effort to
cause) all its properties used or useful in the conduct of its
businesses, considered as a whole, to be maintained and kept in
good condition, repair and working order and shall cause (or,
with respect to property owned in common with others, make
reasonable effort to cause) to be made such repairs, renewals,
replacements, betterments and improvements thereof, as, in the
judgment of the Company, may be necessary in order that the
operation of such properties, considered as a whole, may be
conducted in accordance with common industry practice; provided,
however, that nothing in this Section shall prevent the Company
from discontinuing, or causing the discontinuance of, the
operation and maintenance of any of its properties; and provided,
further, that nothing in this Section shall prevent the Company
from selling, transferring or otherwise disposing of, or causing
the sale, transfer or other disposition of, any of its
properties.
SECTION 506. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in
(a) any covenant or restriction specified
with respect to the Securities of any one or more
series, or any Tranche or Tranches thereof, as
contemplated by Section 301 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;
provided, however, that no such waiver shall be
effective as to any matters contemplated in clause
(a), (b) or (c) in Section 1102 without consent of
the Holders specified in such Section; and
(b) Section 504 or 505 or Article Ten 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.
SECTION 507. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than December 1 in each year, commencing
December 1, 1998, the Company shall deliver to the Trustee an
Officer's Certificate which need not comply with Section 102,
executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company'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.
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. 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, if any, due and to become due on such Securities or
portions thereof; provided, however, that in the case of the
provision for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or portions
thereof shall have been selected by the Security Registrar as
provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been
given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee 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, if applicable, (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 covenants of the Company under
Article Five (except the covenants contained in Sections 502 and
503) or any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 301, 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 Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
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, 502, 503, 807 and
814 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 held by the Trustee as provided in this Section and Section
603 with respect to such Security 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 503.
SECTION 602. 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;
provided, however, that if, in accordance with the last paragraph
of Section 601, 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, 502, 503, 807 and
814 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 603) 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 603. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 601, 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 inter-
est, 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 503; provided, however,
that any cash received from such principal or interest payments
on such Eligible Obligations, if not then needed for such pur-
pose, 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 601, be invested in
Eligible Obligations of the type described in clause (b) in the
first paragraph of Section 601 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; 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; 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 SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with
respect to the Securities of any series, means any of the
following events which shall have occurred and be continuing:
(a) failure to pay interest, if any, on
any Security of such series within sixty (60) days after the
same becomes due and payable; provided, however, that no
such failure shall constitute an "Event of Default" if the
Company shall have made a valid extension of the interest
payment period with respect to the Securities of such series
if so provided with respect to such series as contemplated
by Section 301; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series within three
(3) Business Days after its Maturity; provided, however,
that no such failure shall constitute an "Event of Default"
if the Company shall have made a valid extension of the
Maturity of the Securities of such series if so provided
with respect to such series as contemplated by Section 301;
or
(c) failure to perform 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) for a period of
ninety (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 twenty-
five per centum (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 within such period and is being
diligently pursued; or
(d) a default under any bond, debenture,
note or other evidence of indebtedness for money borrowed by
the Company (including a default with respect to Securities
of any series other than such series) or under any mortgage,
indenture or other instrument under which there may be
issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including
this Indenture), whether such indebtedness now exists or
shall hereafter be created, which default (1) shall
constitute a failure to make any payment in excess of
$5,000,000 of the principal of or interest on such
indebtedness when due and payable after the expiration of
any applicable grace period with respect thereto or (2)
shall have resulted in such indebtedness in an amount in
excess of $10,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise have
become due and payable, without such payment having been
made, such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, as the case
may be, within a period of ninety (90) days after there
shall have been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee
by the Holders of at least twenty-five per centum (25%) in
principal amount of the Outstanding Securities of such
series a written notice specifying such default and
requiring the Company to cause such payment to be made, such
indebtedness to be discharged or such acceleration to be
rescinded or annulled, as the case may be, and stating that
such notice is a Notice of Default hereunder; or
(e) the entry by a court having
jurisdiction in the premises of (i) 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 (ii) a
decree or order adjudging the Company a bankrupt or in-
solvent, 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 ninety (90) consecutive days; or
(f) the commencement by the Company of a
voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the
Company in a case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become
due, or the authorization of such action by the Board of
Directors.
SECTION 702. 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 thirty-three per centum (33%) 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 Outstanding Securities
of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon such declaration such principal amount (or specified
amount), together with premium, if any, and accrued interest, if
any, thereon, 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 thirty-three per
centum (33%) in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the
Securities of any one of such series.
At any time after such a declaration of
acceleration with respect to Securities of any series shall have
been made, but before a judgment or decree for payment of the
money due shall have been obtained by the Trustee as provided in
this Article, 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
(i) all overdue interest, if any, on all
Securities of such series then Outstanding;
(ii) 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;
(iii) interest upon overdue interest at the
rate or rates prescribed therefor in such
Securities, to the extent that payment of such
interest is lawful; and
(iv) all amounts due to the Trustee under
Section 807; 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 713.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 703. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or
(b) of Section 701 shall have occurred and be continuing, the
Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of the 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 princi-
pal and premium, if any, and interest, if any, and, in addition
thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 807.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute
such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities
of any series shall have occurred and be continuing, the Trustee
may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 704. 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 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 807;
SECOND: To the payment of the whole amount then
due and unpaid upon the Outstanding Securities for principal
and premium, if any, and interest, if any, in respect of
which or for the benefit of which such money has been
collected; and in case such proceeds shall be insufficient
to pay in full the whole amount so due and unpaid upon such
Securities, then to the payment of such principal and
interest, if any, thereon without any preference or
priority, ratably according to the aggregate amount so due
and unpaid, with any balance then remaining to the payment
of premium, if any, and, if so specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, interest, if any, on overdue premium,
if any, and overdue interest, if any, ratably as aforesaid,
all to the extent permitted by applicable law;
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 705. 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 807) 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 807.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 706. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this
Indenture or on the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 707. 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 a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class, shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have
offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance
with such request;
(d) the Trustee for sixty (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 sixty (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 the
Holders of Securities of any series shall have any right in any
manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any
other of the Holders of Securities of such series or to obtain or
to seek to obtain priority or preference over any other Holders
of Securities of such series or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all Holders of Securities of such series.
SECTION 708. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which
is absolute and unconditional, to receive payment of the
principal of and premium, if any, and (subject to Section 307)
interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemp-
tion, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 709. 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.
SECTION 710. 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 711. 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 712. 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 713. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of
the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past
default with respect to such series hereunder and its
consequences, except a default
(a) in the payment of the principal of or
premium, if any, or interest, if any, on any Security of
such series, or
(b) in respect of a covenant or provision
hereof which under Section 1102 cannot be modified or
amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to
exist, and any 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 714. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder
by its acceptance of a Security 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, all in the
manner, to the extent and except as provided in the Trust
Indenture Act; but the provisions of this Section shall not apply
to any suit instituted by the Company, to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than ten per centum (10%)
in aggregate principal amount of the Outstanding Securities of
all series in respect of which such suit may be brought,
considered as one class, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of or
premium, if any, or interest, if any, on any Security on or after
the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on or after the Redemption Date).
SECTION 715. WAIVER OF STAY OR EXTENSION LAWS.
To the full extent that it may lawfully so agree,
the Company shall not at any time set up, claim or otherwise seek
to take the benefit or advantage of any stay or extension law,
now or hereafter in effect, in order to prevent or hinder the
enforcement of this Indenture; and the Company, for itself and
all who may claim under it, so far as it or they now or hereafter
may lawfully do so, hereby waives the benefit of all such laws.
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an
Event of Default with respect to Securities of any series,
(i) 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
(ii) 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
provisions 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:
(i) this subsection shall not be construed
to limit the effect of subsection (a) of this
Section;
(ii) 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;
(iii) 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
(iv) 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 802. 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
701(c), no such notice to Holders shall be given until at least
seventy-five (75) days after the occurrence thereof; and
provided, further, that, subject to the provisions of Section
801, the Trustee shall not be deemed to have knowledge of such
default unless either (i) a Responsible Officer of the Trustee
shall have actual knowledge of such default or (ii) the Trustee
shall have received written notice thereof from the Company or
any Holder or, in the case of a default described in Section
701(d), from the holder of any indebtedness or from the trustee
under any mortgage, indenture or other instrument referred to in
such Section. 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 803. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 801 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, sent or presented by the proper party or
parties;
(b) any request, direction or act of the
Company mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the Board
of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or omit-
ting any action hereunder, the Trustee (unless other
evidence is specifically prescribed herein) may, in the
absence of bad faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel
and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such Holder shall
have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it complying 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 (i) a Responsible Officer of the Trustee shall
have actual knowledge of the Event of Default or (ii)
written notice of such Event of Default shall have been
given to the Trustee by the Company, any other obligor on
such Securities or by any Holder of such Securities or, in
the case of a default described in Section 701(d), from the
holder of any indebtedness or from the trustee under any
mortgage, indenture or other instrument referred to in such
Section.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities
(except the Trustee's certificates of authentication) shall be
taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 805. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to
Sections 808 and 813, may otherwise deal with the Company with
the same rights it would have if it were not such Trustee,
Authenticating Agent, Paying Agent, Security Registrar or other
agent.
SECTION 806. 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 807. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) 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, 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 to the extent that any such
expense, disbursement or advance may be attributable to its
negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee and hold it
harmless from and against any loss, liability or expense
reasonably incurred by it arising out of or in connection
with the acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder,
including the reasonable 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, except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations
of the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 603 (except moneys payable to the
Company as provided in Section 603). "TRUSTEE" for purposes of
this Section shall include any predecessor Trustee; provided,
however, that the negligence, wilful misconduct or bad faith of
any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
SECTION 808. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any con-
flicting 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 the Securities
of any other series. For purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act,
the Indenture, dated as of July 1, 1988, between the Company and
The Chase Manhattan Bank (formerly known as Chemical Bank),
trustee, shall be deemed to be specifically described herein.
SECTION 809. 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, any State or
Territory thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least Fifty Million
Dollars ($50,000,000) and subject to supervision or
examination by Federal, State, Territorial 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 Fifty Million
Dollars ($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 or the Trust
Indenture Act, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 810. 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 811.
(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 811 shall
not have been delivered to the Trustee within thirty (30) days
after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of
a majority in principal amount of the Outstanding Securities of
such series delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with
Section 808 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(ii) the Trustee shall cease to be eligible
under Section 809 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
(iii) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject
to Section 714, any Holder who has been a bona fide Holder for at
least six (6) months may, on behalf of itself 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 in
clause (y) in subsection (d) of this Section), with respect to
the Securities of one or more series, the Company, by a Board
Resolution, shall take prompt steps to appoint a successor
Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or
all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series)
and shall comply with the applicable requirements of Section 811.
If, within one (1) 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 811, 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 811, any Holder who
has been a bona fide Holder of a Security of such series for at
least six (6) 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, if the Company shall have
delivered to the Trustee with respect to the Securities of one or
more series (i) a Board Resolution appointing a successor Trustee
or Trustees with respect to that or those series, 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 or Trustees in accordance with Section 811, the Trustee
or Trustees with respect to that or those series shall be deemed
to have resigned as contemplated in subsection (b) of this
Section, the successor Trustee or Trustees shall be deemed to
have been appointed pursuant to subsection (e) of this Section
and such appointment shall be deemed to have been accepted as
contemplated in Section 811, all as of such date, and all other
provisions of this Section and Section 811 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. 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 811. 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,
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 such
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 provi-
sions 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, 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.
(c) Upon reasonable request of any such
successor Trustee, the Company shall execute instruments to more
fully and certainly vest in and confirm to such successor Trustee
all 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 812. 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 813. 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 or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "CASH TRANSACTION" means any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand; and
(b) the term "SELF-LIQUIDATING PAPER"
means any draft, xxxx of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the Company
or such obligor for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company
or such obligor arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation.
SECTION 814. 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,
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 Fifty Million Dollars ($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 all or substantially all
of the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper
or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services
under this Section.
The provisions of Sections 308, 804 and 805 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.
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
SECTION 901. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December
31 in each year, commencing June 30, 1998, and within 30 days of
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, as of a
date no more than fifteen (15) days prior to the date such
information is so furnished, 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 902. REPORTS BY TRUSTEE AND COMPANY.
Not later than November 15 in each year, commencing
November 15, 1998, the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding September
15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within thirty (30) days after filing
with the Commission in the case of reports which 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. The Company shall notify the Trustee of the listing of any
Securities on any securities exchange.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge
into any other Person, or convey or otherwise transfer, or lease,
all of its properties, as or substantially as an entirety, to any
Person, unless:
(a) the Person formed by such xxxxxxx-
dation or into which the Company is merged or the Person
which acquires by conveyance or other transfer, or which
leases (for a term extending beyond the last Stated Maturity
of the Securities then Outstanding), all of the properties
of the Company, as or substantially as an entirety, shall be
a Person organized and existing under the laws of the United
States, any State or Territory thereof or the District of
Columbia or under the laws of Canada or any Province thereof
(such corporation being hereinafter sometimes called the
"SUCCESSOR") and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any,
and interest, if any, on all the Securities then Outstanding
and the performance and observance of every covenant and
condition of this Indenture to be performed or observed by
the Company; and
(b) the Company shall have delivered to
the Trustee an Officer's Certificate and an Opinion of
Counsel, each of which shall state that such consolidation,
merger, conveyance or other transfer or lease, and such
supplemental indenture, comply with this Article and that
all conditions precedent herein provided for relating to
such transaction have been complied with.
Anything in this Indenture to the contrary
notwithstanding, the conveyance or other transfer, or lease, by
the Company of all of its facilities (a) for the generation of
electric energy, (b) for the transmission of electric energy or
(c) for the distribution of electric energy and/or natural gas,
in each case considered alone, or all of its facilities described
in clauses (a) and (b), considered together, or all of its
facilities described in clauses (b) and (c), considered together,
shall in no event be deemed to constitute a conveyance or other
transfer, or lease, of all the properties of the Company, as or
substantially as an entirety, unless, immediately following such
conveyance, transfer or lease, the Company shall own no unleased
properties in the other such categories of property not so
conveyed or otherwise transferred or leased. The character of
particular facilities shall be determined by reference to the
Uniform System of Accounts prescribed for public utilities and
licensees subject to the Federal Power Act, as amended, to the
extent applicable.
SECTION 1002. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger or any conveyance
or other transfer of all the properties of the Company, as or
substantially as an entirety, in accordance with Section 1001,
the Successor shall succeed to, and be substituted for, and may
exercise every power and right of, the Company under this
Indenture with the same effect as if such Successor had been
named as the "Company" herein. Without limiting the generality
of the foregoing, the Successor may execute and deliver to the
Trustee, and thereupon the Trustee shall, subject to the
provisions of Article Three, authenticate and deliver,
Securities. All Securities so executed by the Successor, and
authenticated and delivered by the Trustee, shall in all respects
be entitled to the benefits provided by this Indenture equally
and ratably with all Securities executed, authenticated and
delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective.
SECTION 1003. RELEASE OF COMPANY UPON CONVEYANCE OR OTHER
TRANSFER.
In the case of a conveyance or other transfer to
any Person or Persons as contemplated in Section 1001, upon the
satisfaction of all the conditions specified in Section 1001 the
Company (such term being used in this Section without giving
effect to such transaction) shall be released and discharged from
all obligations and covenants under this Indenture and on and
under all Securities then Outstanding (unless the Company shall
have delivered to the Trustee an instrument in which it shall
waive such release and discharge) and the Trustee shall
acknowledge in writing that the Company has been so released and
discharged.
SECTION 1004. MERGER INTO COMPANY.
Nothing in this Indenture shall be deemed to
prevent or restrict any consolidation or merger after the
consummation of which the Company would be the surviving or
resulting entity or 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.
SECTION 1005. TRANSFER OF LESS THAN THE ENTIRETY.
(a) If the Company shall have conveyed or otherwise
transferred any part of its properties which does not constitute
the entirety, or substantially the entirety, thereof to another
Person meeting the requirements set forth in clause (a) of the
first paragraph of Section 1001 and if:
(i) the transferee of such part of the
properties of the Company shall have executed and delivered
to the Trustee an indenture supplemental hereto, in form
reasonably satisfactory to the Trustee, which contains an
assumption by such transferee of the due and punctual
payment of the principal of and premium, if any, and
interest, if any, on all the Securities then Outstanding and
the performance and observance of every covenant and
condition of this Indenture to be performed or observed by
the Company;
(ii) there shall have been delivered to the
Trustee an Independent Expert's Certificate
(A) describing the property so conveyed or
otherwise transferred (such description of property
to be made by reference either to specific items,
units and/or elements of property or portions
thereof, on a percentage or Dollar basis, or to
properties reflected in specified accounts in the
Company's books of account or portions thereof, on
a Dollar basis); provided, however, that such
property shall be identified in such certificate as
facilities for the generation, transmission or
distribution of electric energy or for the storage,
transportation or distribution of natural gas;
(B) stating, in the judgment of the
signers, the Fair Value to the transferee of the
property so conveyed or otherwise transferred;
provided, however, that there shall be excluded
from the property so evaluated any property subject
to any mortgage, deed of trust, security interest
or other lien which secures indebtedness for
borrowed money or for the deferred purchase price
of property;
(C) stating an amount equal to seventy
percent (70%) of the amount stated pursuant to
clause (B) above;
(D) stating an amount equal to the
aggregate principal amount of the Securities then
Outstanding; and
(E) stating that the amount stated
pursuant to clause (D) above does not exceed the
amount stated pursuant to clause (C) above; and
(iii) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel
each of which shall state that such conveyance or other
transfer and such supplemental indenture comply with this
Section and that all conditions precedent relating to such
transactions provided for in this Section and otherwise in
this Indenture have been complied with;
then, upon the satisfaction of all such conditions,
(x) the Company shall be released and
discharged from all obligations and covenants under this
Indenture and on and under all Securities then Outstanding
(unless the Company shall have delivered to the Trustee an
instrument in which it shall waive such release and
discharge), and the Trustee shall acknowledge in writing
that the Company has been so released and discharged; and
(y) if the Company shall have been
released and discharged as contemplated in clause (x) above,
such transferee 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 transferee
had been named the "Company" herein; and without limiting
the generality of the foregoing, such transferee shall be
deemed a "Successor" for purposes of Section 1002 and for
all other purposes of this Indenture.
(b) For purposes of this Section:
"FAIR VALUE" means the fair value of such
property so conveyed or otherwise transferred as
may be determined by reference to (a) the amount
which would be likely to be obtained in an arm's-
length transaction with respect to such property
between an informed and willing buyer and an
informed and willing seller, under no compulsion,
respectively, to buy or sell, (b) the amount of
investment with respect to such property which,
together with a reasonable return thereon, would be
likely to be recovered through ordinary business
operations or otherwise, (c) the cost, accumulated
depreciation and replacement cost with respect to
such property and/or (d) any other relevant
factors; provided, however, that (x) the Fair Value
of property shall be determined without deduction
for any mortgage, deed of trust, pledge, security
interest, encumbrance, lease, reservation,
restriction, servitude, charge or similar right or
any other lien of any kind on such property and (y)
the Fair Value to the transferee of any property
shall not reflect any reduction relating to the
fact that such property may be of less value to a
Person which is not the owner or operator of the
property or any portion thereof than to a Person
which is such owner or operator. Fair Value may be
determined, without physical inspection, by the use
of accounting and engineering records and other
data maintained by the Company or the transferee or
otherwise available to the Expert certifying the
same.
"INDEPENDENT EXPERT'S CERTIFICATE" means a
certificate signed by an authorized officer of the
transferee and by an Independent Expert (which
Independent Expert shall be selected either by the
board of directors or by an authorized officer of
the transferee, the execution of such certificate
by such authorized officer to be conclusive
evidence of such selection) and delivered to the
Trustee. For purposes of this definition, (a)
"EXPERT" means a Person which is an engineer,
appraiser or other expert and which, with respect
to any certificate to be signed by such Person and
delivered to the Trustee, is qualified to pass upon
the matter set forth in such certificate; (b)
"ENGINEER" means a Person engaged in the
engineering profession or otherwise qualified to
pass upon engineering matters (including, but not
limited to, a Person licensed as a professional
engineer, whether or not then engaged in the
engineering profession) and (c) "APPRAISER" means a
Person engaged in the business of appraising
property or otherwise qualified to pass upon the
Fair Value or fair market value of property.
"INDEPENDENT", when applied to any Expert, means
such a Person who (a) is in fact independent, (b)
does not have any direct material financial
interest in the transferee or in any obligor upon
the Securities or in any Affiliate of the
transferee, (c) is not connected with the
transferee or such other obligor as an officer,
employee, promoter, underwriter, trustee, partner,
director or any person performing similar functions
and (d) is approved by the Trustee in the exercise
of reasonable care.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. 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 reasonably
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 Ten; or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all
Holders or for the benefit of the Holders of, or to
remain in effect only so long as there shall be
Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof,
or to surrender any right or power herein conferred
upon the Company; or
(c) to change or eliminate any provision
of this Indenture or to add any new provision to
this Indenture; provided, however, that if such
change, elimination or addition shall adversely
affect the interests of the Holders of Securities
of any series or Tranche in any material respect,
such change, elimination or addition shall become
effective with respect to such series or Tranche
only when no Security of such series or Tranche
remains Outstanding; or
(d) to provide collateral security for the
Securities of any series thereof; or
(e) to establish the form or terms of
Securities of any series or Tranche as contemplated
by Sections 201 and 301; or
(f) 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
(g) to evidence and provide for the
acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or
more series and to add to or change any of the
provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 811(b); or
(h) 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
(i) to change any place or places where
(1) the principal of and premium, if any, and
interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be
payable, (2) all or any series of Securities, or
any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of
Securities, or any Tranche thereof, may be
surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or
any series of Securities, or any Tranche thereof,
and this Indenture may be served; or
(j) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein; or to make any other 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 provisions 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 and the Trustee
may, without the consent of any Holders, enter into
an indenture supplemental hereto to amend this
Indenture to effect such changes or elimination.
SECTION 1102. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1101, with the
consent of the Holders of 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
Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this
Indenture; provided, however, that if there shall be Securities
of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be
required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the
proposed supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less than all,
of such Tranches, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected, considered as
one class, shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the
principal of, or any installment of principal of or
interest on, 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 thereon, or reduce the
amount of the principal of any Discount Security
that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to
Section 702, or change the coin or currency (or
other property), in which any Security or premium,
if any, or interest, if any, thereon is payable, or
impair the right to institute suit for the
enforcement of any such payment on or after the
Maturity of any Security, without, in any such
case, the consent of the Holder of such Security;
or
(b) reduce the percentage in principal
amount of the Outstanding Securities of any series,
or any Tranche thereof, the consent of the Holders
of which is required for any such supplemental in-
denture, 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 1204 for quorum or voting,
without, in any such case, the consent of the
Holder of each Outstanding Security of such series
or Tranche; or
(c) modify any of the provisions of this
Section, Section 506 or Section 713 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 Holders of all Securities of
such series or Tranche) without, in any such case,
the consent of the Holder of each Outstanding
Security of such series or Tranche; provided, how-
ever, 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 811(b) and 1101(g).
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 specified 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 1103. 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 801) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1104. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution and delivery 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 1105. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act.
SECTION 1106. 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 1107. 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 a Board Resolution as
contemplated by Section 301, and not in a supplemental indenture,
additions to, changes in or the elimination of any of such terms
may be effected by means of a supplemental Board Resolution or a
supplemental Officer's Certificate, as the case may be, delivered
to, and accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or supplemental 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 supplemental
Officer's Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1104 and 1106.
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. 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 1202. 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 1201, to be held at such time and (except as provided in
subsection (b) of this Section) 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 twenty-one (21) nor more than one
hundred eighty (180) days prior to the date fixed for the
meeting.
(b) The Trustee may be asked to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company or by
the Holders of thirty-three per centum (33%) in aggregate
principal amount of all of such series and Tranches, considered
as one class, for any purpose specified in Section 1201, by
written request setting forth in reasonable detail the action
proposed to be taken at the meeting. If the Trustee shall have
been asked by the Company to call such a meeting, the Company
shall determine the time and place for such meeting and may call
such meeting by giving notice thereof in the manner provided in
subsection (a) of this Section, or shall direct the Trustee, in
the name and at the expense of the Company, to give such notice.
If the Trustee shall have been asked to call such a meeting by
Holders in accordance with this subsection (b), and the Trustee
shall not have given the notice of such meeting within twenty-one
(21) days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then
the Holders of Securities of such series and Tranches, in the
principal amount above specified, 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, 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 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 any Tranche or Tranches thereof, or by such of
them as are not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1203. 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 its counsel.
SECTION 1204. 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 Secu-
rities 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 1205(e), notice of the reconvening of any meeting
adjourned for more than thirty (30) days shall be given as
provided in Section 106 not less than ten (10) 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 1102, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance with
this Section shall be binding on all the Holders of Securities of
the series and Tranches with respect to which such meeting shall
have been held, whether or not present or represented at the
meeting.
SECTION 1205. 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 (except as provided in Section 104(g)) 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 and approved by the
Company, 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 1202(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 One Thousand Dollars
($1,000) principal amount of Outstanding Securities held or
represented by such Holder; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to
Section 1202 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 1206. 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
such 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 such notice was given as
provided in Section 1202 and, if applicable, Section 1204. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
SECTION 1207. 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 THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 1301. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon
or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or
future, of the Company or of any predecessor or successor cor-
poration (either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or
any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom
or therefrom; and such personal liability, if any, is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution and delivery of this
Indenture and the issuance of the Securities.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first
above written.
THE WASHINGTON WATER POWER COMPANY
By:
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Name: X.X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, Trustee
By:
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Name:
Title:
