EXHIBIT 4.1
PNM RESOURCES, INC.
TO
JPMORGAN CHASE BANK
TRUSTEE
----------------------------
INDENTURE
DATED AS OF ___________, 200__
----------------------------
(FOR SENIOR NOTES)
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
Section 310 (a) (1)................................................... 6.09
(a) (2)................................................... 6.09
(a) (3)................................................... Not Applicable
(a) (4)................................................... Not Applicable
(b)....................................................... 6.08
.......................................................... 6.10
Section 311 (a)....................................................... 6.13
(b)....................................................... 6.13
Section 312 (a)....................................................... 7.01
.......................................................... 7.02
(b)....................................................... 7.02
(c)....................................................... 7.02
Section 313 (a)....................................................... 7.03
(b)....................................................... 7.03
(c)....................................................... 7.03
(d)....................................................... 7.03
Section 314 (a)....................................................... 7.04
(a) (4)................................................... 1.02
.......................................................... 10.04
(b)....................................................... Not Applicable
(c) (1)................................................... 1.02
(c) (2)................................................... 1.02
(c) (3)................................................... Not Applicable
(d)....................................................... Not Applicable
(e)....................................................... 1.02
Section 315 (a)....................................................... 6.01
(b)....................................................... 6.02
(c)....................................................... 6.01
(d)....................................................... 6.01
(e)....................................................... 5.14
Section 316 (a)....................................................... 5.12
.......................................................... 5.13
(a) (1) (A)............................................... 5.02
.......................................................... 5.12
(a) (1) (B)............................................... 5.13
(a) (2)................................................... Not Applicable
(b)....................................................... 5.08
(c)....................................................... 1.04
Section 317 (a) (1)................................................... 5.03
(a) (2)................................................... 5.04
(b)....................................................... 10.03
Section 318 (a)....................................................... 1.07
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 Definitions................................................................................... 1
Section 1.02 Compliance Certificates and Opinions.......................................................... 7
Section 1.03 Form of Documents Delivered to Trustee........................................................ 7
Section 1.04 Acts of Holders; Record Dates................................................................. 8
Section 1.05 Notices, Etc., to Trustee and Company......................................................... 10
Section 1.06 Notice to Holders; Waiver..................................................................... 11
Section 1.07 Conflict with Trust Indenture Act............................................................. 11
Section 1.08 Effect of Headings and Table of Contents...................................................... 12
Section 1.09 Successors and Assigns........................................................................ 12
Section 1.10 Separability Clause........................................................................... 12
Section 1.11 Benefits of Indenture......................................................................... 12
Section 1.12 Governing Law................................................................................. 12
Section 1.13 Legal Holidays................................................................................ 12
ARTICLE II
NOTE FORMS
Section 2.01 Forms Generally............................................................................... 13
Section 2.02 Form of Face of Note.......................................................................... 13
Section 2.03 Form of Reverse of Note....................................................................... 15
Section 2.04 Form of Legend for Global Notes............................................................... 18
Section 2.05 Form of Trustee's Certificate of Authentication............................................... 19
ARTICLE III
THE NOTES
Section 3.01 Amount Unlimited; Issuable in Series.......................................................... 19
Section 3.02 Denominations................................................................................. 22
Section 3.03 Execution, Authentication, Delivery and Dating................................................ 22
Section 3.04 Temporary Notes............................................................................... 25
Section 3.05 Registration, Registration of Transfer and Exchange........................................... 25
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes................................................... 27
Section 3.07 Payment of Interest; Interest Rights Preserved................................................ 28
Section 3.08 Persons Deemed Owners......................................................................... 29
Section 3.09 Cancellation.................................................................................. 29
Section 3.10 Computation of Interest....................................................................... 29
Section 3.11 CUSIP Numbers................................................................................. 29
Section 3.12 Payment to Be in Proper Currency.............................................................. 30
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ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture....................................................... 30
Section 4.02 Application of Trust Money.................................................................... 31
ARTICLE V
REMEDIES
Section 5.01 Events of Default............................................................................. 32
Section 5.02 Acceleration of Maturity; Rescission and Annulment............................................ 33
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee............................... 34
Section 5.04 Trustee May File Proofs of Claim.............................................................. 34
Section 5.05 Trustee May Enforce Claims Without Possession of Notes........................................ 35
Section 5.06 Application of Money Collected................................................................ 35
Section 5.07 Limitation on Suits........................................................................... 36
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest..................... 36
Section 5.09 Restoration of Rights and Remedies............................................................ 37
Section 5.10 Rights and Remedies Cumulative................................................................ 37
Section 5.11 Delay or Omission Not Waiver.................................................................. 37
Section 5.12 Control by Holders............................................................................ 37
Section 5.13 Waiver of Past Defaults....................................................................... 38
Section 5.14 Undertaking for Costs......................................................................... 38
Section 5.15 Waiver of Stay or Extension Laws.............................................................. 39
ARTICLE VI
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities........................................................... 39
Section 6.02 Notice of Defaults............................................................................ 40
Section 6.03 Certain Rights of Trustee..................................................................... 40
Section 6.04 Not Responsible for Recitals or Issuance of Notes............................................. 41
Section 6.05 May Hold Notes................................................................................ 41
Section 6.06 Money Held in Trust........................................................................... 42
Section 6.07 Compensation and Reimbursement................................................................ 42
Section 6.08 Conflicting Interests......................................................................... 43
Section 6.09 Corporate Trustee Required; Eligibility....................................................... 43
Section 6.10 Resignation and Removal; Appointment of Successor............................................. 43
Section 6.11 Acceptance of Appointment by Successor........................................................ 45
Section 6.12 Merger, Conversion, Consolidation or Succession to Business................................... 46
Section 6.13 Preferential Collection of Claims Against Company............................................. 46
Section 6.14 Appointment of Authenticating Agent........................................................... 46
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders..................................... 48
Section 7.02 Preservation of Information; Communications to Holders........................................ 48
Section 7.03 Reports by Trustee............................................................................ 49
Section 7.04 Reports by Company............................................................................ 49
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.......................................... 49
Section 8.02 Successor Substituted......................................................................... 50
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders............................................ 50
Section 9.02 Supplemental Indentures With Consent of Holders............................................... 52
Section 9.03 Execution of Supplemental Indentures.......................................................... 53
Section 9.04 Effect of Supplemental Indentures............................................................. 53
Section 9.05 Conformity with Trust Indenture Act........................................................... 53
Section 9.06 Reference in Notes to Supplemental Indentures................................................. 53
ARTICLE X
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest.................................................... 54
Section 10.02 Maintenance of Office or Agency............................................................... 54
Section 10.03 Money for Notes Payments to Be Held in Trust.................................................. 54
Section 10.04 Statement by Officers as to Default........................................................... 55
Section 10.05 Corporate Existence........................................................................... 56
Section 10.06 Maintenance of Properties..................................................................... 56
Section 10.07 Waiver of Certain Covenants................................................................... 56
ARTICLE XI
REDEMPTION OF NOTES
Section 11.01 Applicability of Article...................................................................... 57
Section 11.02 Election to Redeem; Notice to Trustee......................................................... 57
Section 11.03 Selection by Trustee of Notes to be Redeemed.................................................. 57
Section 11.04 Notice of Redemption.......................................................................... 58
Section 11.05 Deposit of Redemption Price................................................................... 59
Section 11.06 Notes Payable on Redemption Date.............................................................. 59
Section 11.07 Notes Redeemed in Part........................................................................ 59
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ARTICLE XII
SINKING FUNDS
Section 12.01 Applicability of Article...................................................................... 60
Section 12.02 Satisfaction of Sinking Fund Payments with Notes.............................................. 60
Section 12.03 Redemption of Notes for Sinking Fund.......................................................... 60
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01 Company's Option to Effect Defeasance or Covenant Defeasance.................................. 61
Section 13.02 Defeasance and Discharge...................................................................... 61
Section 13.03 Covenant Defeasance........................................................................... 61
Section 13.04 Conditions to Defeasance or Covenant Defeasance............................................... 62
Section 13.05 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions ................................................................... 64
Section 13.06 Reinstatement................................................................................. 64
ARTICLE XIV
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 14.01 Purposes for Which Meetings May Be Called..................................................... 65
Section 14.02 Call, Notice and Place of Meetings............................................................ 65
Section 14.03 Persons Entitled to Vote at Meetings.......................................................... 65
Section 14.04 Quorum: Action................................................................................ 66
Section 14.05 Attendance at Meetings; Determination of Voting Rights; Conduct and Adjournment of Meetings... 67
Section 14.06 Counting Votes and Recording Action of Meetings............................................... 67
Section 14.07 Action Without Meeting........................................................................ 68
ARTICLE XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 15.01 Liability Solely Corporate.................................................................... 68
TESTIMONIUM
SIGNATURES
iv
INDENTURE dated as of __________, 200__ between PNM RESOURCES, INC., a
corporation duly organized and existing under the laws of the State of New
Mexico (herein called the "Company"), having its principal office at Xxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, and JPMORGAN CHASE BANK, a New York
banking corporation, as Trustee (herein 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 its senior notes
(herein called the "NOTES"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes or of series thereof, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "GENERALLY ACCEPTED
ACCOUNTING principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted in the
United States of America;
(4) unless the context otherwise requires, any reference to an
"ARTICLE" or a "SECTION" refers to an Article or a Section, as the case may be,
of this Indenture; and
(5) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"ACT" when used with respect to any Holder, has the meaning specified
in SECTION 1.04.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to SECTION 6.14 to act on behalf of the Trustee to authenticate Notes
of one or more series or any Tranche thereof.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary or Associate 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 any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by
law, regulation or executive order to close, except as may be otherwise
specified as contemplated by SECTION 3.01.
"COMMISSION" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMPANY" means the Person named as the "COMPANY" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "
COMPANY" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee in The City of
New York, at which at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is located at 0 Xxx
Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"CORPORATION" means a corporation, association, company, joint-stock
company or business trust.
"COVENANT DEFEASANCE" has the meaning specified in SECTION 13.03.
2
"DEFAULTED INTEREST" has the meaning specified in SECTION 3.07.
"DEFEASANCE" has the meaning specified in SECTION 13.02.
"DEPOSITARY" means, with respect to Notes of any series issuable in
whole or in part in the form of one or more Global Notes, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Notes as contemplated by SECTION 3.01.
"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.
"EVENT OF DEFAULT" has the meaning specified in SECTION 5.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"EXPIRATION DATE" has the meaning specified in SECTION 1.04.
"GLOBAL NOTE" means a Note that evidences all or part of the Notes of
any series and bears the legend set forth in or contemplated by SECTION 2.04 (or
such legend as may be specified as contemplated by SECTION 3.01 for such Notes).
"HOLDER" means a Person in whose name a Note is registered in the Note
Register.
"INDENTURE" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Notes established as contemplated by SECTION 3.01.
"INDEPENDENT" when applied to any accountant shall mean such a Person
who is in fact independent, selected by the Company and approved by the Trustee
in the exercise of reasonable care.
"INTEREST" when used with respect to an Original Issue Discount Note
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"INTEREST PAYMENT DATE" when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"MATURITY" when used with respect to any Note, means the date on which
the principal of such Note or an installment of principal becomes due and
payable as therein or herein
3
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"NOTES" has the meaning stated in the first recital of this Indenture
and more particularly means any Notes authenticated and delivered under this
Indenture.
"NOTE REGISTER" and "NOTE REGISTRAR" have the respective meanings
specified in SECTION 3.05.
"NOTICE OF DEFAULT" means a written notice of the kind specified in
SECTION 5.01(4).
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee; provided,
that an Assistant Treasurer or Assistant Secretary need not be an officer of the
Company under the Company's Bylaws. One of the officers signing an Officers'
Certificate given pursuant to SECTION 10.04 shall be the principal executive,
financial or accounting officer of the Company.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company, or other counsel who shall be acceptable to the
Trustee.
"ORIGINAL ISSUE DISCOUNT NOTE" means any Note 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 5.02.
"OUTSTANDING" when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(1) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Notes for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such Notes;
provided that, if such Notes are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(3) Notes as to which Defeasance has been effected pursuant to SECTION
13.02; and
(4) Notes which have been paid pursuant to SECTION 3.06 or in exchange
for or in lieu of which other Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in respect of which there
shall have been presented to the Trustee proof satisfactory to it that such
Notes are held by a protected purchaser in whose hands such Notes are valid
obligations of the Company;
4
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Notes Outstanding under this Indenture, or the
Outstanding Notes of any series or Tranche, have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date or whether or not a quorum is present at a
meeting of Holders, (A) the principal amount of an Original Issue Discount Note
which shall be deemed to be Outstanding shall be the amount of the principal
thereof which would be due and payable as of such date upon acceleration of the
Maturity thereof to such date pursuant to SECTION 5.02, (B) if, as of such date,
the principal amount payable at the Stated Maturity of a Note is not
determinable, the principal amount of such Note which shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by
SECTION 3.01, (C) the principal amount of a Note denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by SECTION 3.01, of the principal amount of such Note
(or, in the case of a Note described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Notes owned by the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such obligor owns all Notes
Outstanding under this Indenture, or all Outstanding Notes of each such series
and each such Tranche, as the case may be, determined without regard to this
clause (D)) 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, waiver or other
action, or upon such determination as to the presence of a quorum, only Notes
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Notes on behalf of the Company.
"PERIODIC OFFERING" means an offering of Notes of a series from time to
time any or all of the specific terms of which Notes, including without
limitation the rate or rates of interest, if any, thereon, the Stated Maturity
or Stated Maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents at or about the time
of the issuance of such Notes.
"PERSON" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency, instrumentality
or political subdivision thereof.
"PLACE OF PAYMENT" when used with respect to the Notes of any series,
or any Tranche thereof, means the place or places where the principal of and any
premium and interest on the Notes of that series or Tranche are payable as
specified as contemplated by SECTION 3.01.
"PREDECESSOR NOTE" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this
5
definition, any Note authenticated and delivered under SECTION 3.06 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Note.
"REDEMPTION DATE" when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE" when used with respect to any Note 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 Notes of any series means the date specified for that purpose as
contemplated by SECTION 3.01.
"REQUIRED CURRENCY" has the meaning specified in SECTION 3.12.
"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 ACT" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to SECTION 3.07.
"STATED MATURITY" when used with respect to any Note or any installment
of principal thereof or interest thereon, means the date specified in such Note
as the fixed date on which the principal of such Note or such installment of
principal or interest is due and payable.
"TRANCHE" means a group of Notes 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 the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "TRUST
INDENTURE ACT" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 or any statute successor thereto, in each case as so
amended.
"TRUSTEE" means the Person named as the "TRUSTEE" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Notes pursuant to the applicable
provisions of this Indenture, and thereafter "TRUSTEE" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "TRUSTEE" as used with respect to the Notes of any series
shall mean the Trustee with respect to Notes of that series.
"U.S. GOVERNMENT OBLIGATION" has the meaning specified in SECTION
13.04.
6
"VICE PRESIDENT" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 1.02 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer or an Assistant Treasurer or
Assistant Secretary of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate (other than certificates pursuant to Section
314(a)(4) of the Trust Indenture Act) or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she
has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or an Assistant
Treasurer or Assistant Secretary of the Company, stating that the information
with respect to such factual matters is in the possession of the Company, unless
such
7
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officers' 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 or willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Notes issues under the authority of such defective document
or instrument shall nevertheless be the valid obligations of the Company
entitled to the benefits of this Indenture equally and ratably with all other
Outstanding Notes, except as aforesaid.
Section 1.04 ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made 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 Fourteen, 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 of record
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 shall be sufficient for any purpose of this Indenture
and (subject to SECTION 6.01) 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 14.06.
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
8
signing such instrument or writing acknowledged to him or her the execution
thereof. Where such execution is by a signer acting in a capacity other than his
or her individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Notes shall be proved by the Note Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Note shall bind every future Holder of the
same Note and the Holder of every Note 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 Note.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes of any series entitled to give,
make or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders of Notes of such series, provided that the Company may not
set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Notes of the relevant series on
such record date, and no other Holders, shall be entitled to take or revoke the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Notes of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Notes of the relevant series on
the date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Notes of the
relevant series in the manner set forth in SECTION 1.06.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes of any series entitled to join in
the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in SECTION 5.02, (iii) any request to institute
proceedings referred to in SECTION 5.07(2) or (iv) any direction referred to in
SECTION 5.12, in each case with respect to Notes of such series. If any record
date is set pursuant to this paragraph, the Holders of Outstanding Notes of such
series on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction or to revoke the same, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Notes of such series on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new
9
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding Notes
of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of Notes of the relevant series in the manner set forth in SECTION
1.06.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "EXPIRATION
DATE" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Notes of the relevant series in the manner set forth in
SECTION 1.06, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Note may do so with regard to all
or any part of the principal amount of such Note or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 1.05 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 herein
expressly provided) if in writing and delivered personally to an officer or
other responsible employee of the addressee, or transmitted by facsimile
transmission or other direct written electronic means to such telephone number
or other electronic communications address as the parties hereto shall from time
to time designate, or transmitted by first-class 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:
10
IF TO THE TRUSTEE, TO:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
IF TO THE COMPANY, TO:
PNM Resources, Inc.
Xxxxxxxx Xxxxxx XX-0000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any communication contemplated herein shall be deemed to have been
made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission or other direct written
electronic means, on the date of transmission, and if transmitted by first-class
mail, on the date of receipt.
Section 1.06 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his or her address as it appears in the Note Register, not
later than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 1.07 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which would be required under such Act to be a part
of and govern this Indenture,
11
the latter provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 1.08 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.09 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 1.10 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 BENEFITS OF INDENTURE.
The trusts created by this Indenture are for the equal and
proportionate benefit and security of the Holders without any priority of any
Note over any other Note. Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1.12 GOVERNING LAW.
This Indenture and the Notes 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).
Section 1.13 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Notes (other
than a provision of any Note of any series, or any Tranche thereof, or in the
indenture supplemental hereto, Board Resolution or Officers' Certificate which
establishes the terms of such series of Notes or Tranche which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the 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, then no interest shall accrue
on the amount so payable for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to such Business
Day.
12
ARTICLE II
NOTE FORMS
Section 2.01 FORMS GENERALLY.
The definitive Notes of each series shall be in substantially the form
thereof set forth in this Article, or in such other form or forms thereof
established in the indenture supplemental hereto establishing such series or in
a Board Resolution establishing such series, or in an Officers' Certificate
pursuant to such supplemental indenture or Board Resolution, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution thereof. If the
form or forms of Notes of any series are established in a Board Resolution or in
an Officers' Certificate pursuant to a Board Resolution, such Board Resolution
and Officers' Certificate, if any, shall be delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by SECTION 3.03 for the
authentication and delivery of such Notes.
Unless otherwise specified as contemplated by SECTION 3.01, the Notes
of each series shall be issuable in registered form without coupons. The
definitive Notes shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
Section 2.02 FORM OF FACE OF NOTE.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
PNM RESOURCES, INC.
..........................................................
No. .............. $ .............
CUSIP No. ____________
PNM Resources, Inc., a corporation duly organized and existing under
the laws of New Mexico (herein called the "COMPANY," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered assigns, the principal sum
of _____________ Dollars on __________ [if the Note is to bear interest prior to
Maturity, insert - , and to pay interest thereon from _________ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, [semi-annually on _________and _________] [quarterly on _______, _______,
_______ and _______] in each year, commencing _______________, at the rate of
___% per annum, until the principal hereof is paid or made available for
payment] [if applicable, insert - , provided that any principal and premium, and
any such installment of interest, which is overdue shall bear interest at the
rate
13
of ___% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
_________ or _________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Note
(or one or more Predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture].
[If the Note is not to bear interest prior to Maturity, insert - The
principal of this Note shall not bear interest except in the case of a default
in payment of principal upon acceleration, upon redemption or at Stated Maturity
and in such case the overdue principal and any overdue premium shall bear
interest at the rate of ___% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ____% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Note will be made at the office or agency of
the Company maintained for that purpose in __________, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert - ; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register].
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
14
PNM RESOURCES, INC.
By:
Section 2.03 FORM OF REVERSE OF NOTE.
This Note is one of a duly authorized issue of senior notes of the
Company (herein called the "NOTES"), issued and to be issued in one or more
series under an Indenture, dated as of ____________, 20__ (herein called the
"INDENTURE", which term shall have the meaning assigned to it in such
instrument), between the Company and JPMorgan Chase Bank, as Trustee (herein
called the "TRUSTEE," which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof [if applicable, insert - ,
limited in aggregate principal amount to $________].
[If applicable, insert - The Notes of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert -
(1) on _________ in any year commencing with the year ____ and ending with the
year ____ through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert - on or after ________, 20__], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert - on or
before ____________, ___%, and if redeemed] during the 12-month period beginning
__________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Notes, or
one or more Predecessor Notes, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
15
[If applicable, insert - The Notes of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ___ and ending with the year ___ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after ___________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ____________ of the years indicated,
Redemption Price For Redemption Price For Redemption
Redemption Through Operation Otherwise Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ---------------------------- --------------------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Notes, or one or more Predecessor
Notes, of record at the close of business on the relevant Record Dates referred
to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Company may
not, prior to ___________, redeem any Notes of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ___% per annum.]
[If applicable, insert - The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year ____ and
ending with the year ____ of ________ [if applicable, insert - not less than
$________ ("mandatory sinking fund") and not more than] $________ aggregate
principal amount of Notes of this series. Notes of this series acquired or
redeemed by the Company otherwise than through [if applicable, insert -
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
[If the Note is subject to redemption of any kind, insert - In the
event of redemption of this Note in part only, a new Note or Notes of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
16
[If applicable, insert - The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Note] [or] [certain
restrictive covenants and Events of Default with respect to this Note] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Note is not an Original Issue Discount Note, insert - If an
Event of Default with respect to Notes of this series shall occur and be
continuing, the principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture.]
[If the Note is an Original Issue Discount Note, insert - If an Event
of Default with respect to Notes of this series shall occur and be continuing,
an amount of principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to ________ [insert formula for determining the amount]. Upon
payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and
premium and interest, if any, on the Notes of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in principal amount of the Notes at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and to waive certain past defaults under the
Indenture and their consequences, provided, however, that if any such past
default affects more than one series of Notes, the Holders of a majority in
aggregate principal amount of the Outstanding Notes of all such series,
considered as one class, shall have the right to waive such past default, and
not the Holders of the Notes of any one such series. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than a majority in aggregate
principal amount of the Notes of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Notes of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing a direction inconsistent
with such request, and shall have
17
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $______ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series and of like tenor of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Section 2.04 FORM OF LEGEND FOR GLOBAL NOTES.
Unless otherwise specified as contemplated by SECTION 3.01 for the
Notes evidenced thereby, every Global Note authenticated and delivered hereunder
shall bear a legend in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A NOTE
18
REGISTERED, AND NO TRANSFER OF THIS NOTE IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 2.05 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the following form:
CERTIFICATION OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to
in the within-mentioned Indenture.
Dated: _______________
_______________________________
as Trustee
By: ___________________________
Authorized Officer
ARTICLE III
THE NOTES
Section 3.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is unlimited. The Notes may be issued in one or
more series, each of which series may be issued in one or more Tranches. Subject
to the last paragraph of this Section, prior to the authentication and delivery
of Notes of any series there shall be established by specification in an
indenture supplemental hereto or in a Board Resolution, or in an Officers'
Certificate pursuant to one or more indentures supplemental hereto or a Board
Resolution:
(1) the title of the Notes of such series (which shall distinguish the
Notes of such series from Notes of any other series);
(2) any limit upon the aggregate principal amount of the Notes of such
series which may be authenticated and delivered under this Indenture (except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes of such series pursuant to SECTION
3.04, 3.05, 3.06, 9.06 OR 11.07 and except for any Notes which, pursuant to
SECTION 3.03, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person or Persons (without specific identification) to whom
interest on Notes of such series, or any Tranche thereof, shall be payable on
any Interest Payment Date, if other than
19
the Persons in whose names such Notes (or one or more Predecessor Notes) are
registered at the close of business on the Regular Record Date for such
interest;
(4) the date or dates on which the principal of the Notes of such
series, or any Tranche thereof, is payable or any formula 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);
(5) the rate or rates at which the Notes 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 Notes 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 formula 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; and the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date, if any, for the interest payable
on such Notes on any Interest Payment Date;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the place or places at which or methods by which (A) the principal
of and premium, if any, and interest, if any, on Notes of such series, or any
Tranche thereof, shall be payable, (B) registration of transfer of Notes of such
series, or any Tranche thereof, may be effected, (C) exchanges of Notes of such
series, or any Tranche thereof, may be effected and (D) notices and demands to
or upon the Company in respect of the Notes of such series, or any Tranche
thereof, and this Indenture may be served; the Note Registrar and any Paying
Agent or Agents for such series, or any Tranche thereof; and if such is the
case, that the principal of such Notes shall be payable without presentment or
surrender thereof;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Notes of such series, or any Tranche
thereof, may be redeemed, in whole or in part, at the option of the Company and,
if other than by a Board Resolution, the manner in which any election by the
Company to redeem such Notes shall be evidenced;
(9) the obligation, if any, of the Company to redeem or purchase any
Notes of such series, or any Tranche thereof, pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the period or
periods within which, the price or prices at which and the terms and conditions
upon which any Notes of such series, or any Tranche thereof, shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Notes of such series, or any Tranche
thereof, shall be issuable;
(11) if the amount of principal of or any premium or interest on any
Notes of such series, or any Tranche thereof, may be determined with reference
to an index or pursuant to a formula,
20
the manner in which such amounts shall be determined to the extent not
established pursuant to clause (5) of this paragraph;
(12) any collateral, security, assurance or guarantee applicable to the
Notes of such series;
(13) if other than Dollars, the currency, currencies or currency units
in which the principal of or any premium or interest on any Notes of such
series, or any Tranche thereof, shall be payable and the manner of determining
the equivalent thereof in Dollars for any purpose, including for purposes of the
definition of "Outstanding" in SECTION 1.01;
(14) if the principal of or any premium or interest on any Notes of
such series, or any Tranche thereof, is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency units other
than that or those in which such Notes are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Notes as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such election is to
be made and the amount so payable (or the manner in which such amount shall be
determined);
(15) if other than the entire principal amount thereof, the portion of
the principal amount of any Notes of such series, or any Tranche thereof, which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to SECTION 5.02;
(16) if the principal amount payable at the Stated Maturity of any
Notes of such series, or any Tranche thereof, will not be determinable as of any
one or more dates prior to the Stated Maturity, the amount which shall be deemed
to be the principal amount of such Notes as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which shall
be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the principal amount
shall be determined);
(17) if applicable, that the Notes of such series, or any Tranche
thereof, in whole or any specified part, shall be defeasible pursuant to SECTION
13.02 or that the Notes of such series, but not Tranches thereof alone, shall be
defeasible pursuant to SECTION 13.03, or both such sections, and, if other than
by a Board Resolution, the manner in which any election by the Company to
defease such Notes shall be evidenced;
(18) if applicable, that any Notes of such series, or any Tranche
thereof, shall be issuable in whole or in part in the form of one or more Global
Notes and, in such case, the respective Depositaries for such Global Notes, the
form of any legend or legends which shall be borne by any such Global Note in
addition to or in lieu of that set forth in SECTION 2.04 and any circumstances
in addition to or in lieu of those set forth in Clause (2) of the last paragraph
of SECTION 3.05 in which any such Global Note may be exchanged in whole or in
part for Notes registered, and any transfer of such Global Note in whole or in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Note or a nominee thereof;
(19) any addition to or change in the Events of Default which applies
to any Notes of such series, or any Tranche thereof, and any change in the right
of the Trustee or the requisite
21
Holders of such Notes to declare the principal amount thereof due and payable
pursuant to SECTION 5.02;
(20) any addition to or change in the covenants set forth in ARTICLE X
which applies to Notes of such series, or any Tranche thereof; and
(21) any other terms of such series, or any Tranche thereof (which
terms shall not be inconsistent with the provisions of this Indenture, except as
permitted by SECTION 9.01(5)).
All Notes of any one series or, if issued in Tranches thereof, any such
Tranche, shall be substantially identical except as to denomination and except
as may otherwise be determined in the manner provided for in this Indenture.
With respect to Notes of a series subject to a Periodic Offering, the indenture
supplemental hereto or the Board Resolution which establishes such series, or
the Officers' Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or parameters for
Notes of such series and provide either that the specific terms of Notes 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
3.03.
Section 3.02 DENOMINATIONS.
Except as permitted by SECTION 9.01(4), the Notes of each series, or
any Tranche thereof, shall be issuable only in fully registered form without
coupons and only in such denominations as shall be specified as contemplated by
SECTION 3.01. In the absence of any such specified denomination with respect to
the Notes of any series, or any Tranche thereof, the Notes of such series, or
any Tranche thereof, shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
Unless otherwise provided as contemplated by SECTION 3.01 with respect
to any series of Notes, or any Tranche thereof, the Notes shall be executed on
behalf of the Company by its Chairman of the Board, its Vice Chairman of the
Board, its President or one of its Vice Presidents, or by any other officer or
employee of the Company who is authorized by a Board Resolution to execute the
Notes on behalf of the Company and may have the corporate seal of the Company
affixed thereto or reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these individuals on the Notes
may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers or other employees of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices or be so employed prior to the authentication and
delivery of such Notes or did not hold such offices or were not so employed at
the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Trustee shall authenticate and deliver Notes of a series,
for original issue, at one time or from
22
time to time in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the form
or forms and terms of such series as provided in SECTIONS 2.01 and 3.01;
(b) a Company Order requesting the authentication and
delivery of such Notes and, to the extent that the terms of such Notes shall not
have been established in an indenture supplemental hereto or in a Board
Resolution, or in an Officers' Certificate pursuant to a supplemental indenture
or Board Resolution, all as contemplated by SECTIONS 2.01 and 3.01, either (i)
establishing such terms or (ii) in the case of Notes of a series subject to a
Periodic Offering, specifying procedures, acceptable to the Trustee, by which
such terms are to be established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery pursuant to oral or
electronic instructions from the Company or any agent or agents thereof, which
oral instructions are to be promptly confirmed electronically or in writing), in
either case in accordance with the instrument or instruments delivered pursuant
to clause (a) above;
(c) the Notes of such series, executed on behalf of the
Company by officers or employees authorized as hereinabove in this Section
provided;
(d) an Opinion of Counsel stating that:
(i) if the form or forms of such Notes have been
established in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series, or in an
Officers' Certificate pursuant to such supplemental indenture or Board
Resolution, as permitted by SECTION 2.01, such form or forms have been
duly authorized by the Company and established in conformity with the
provisions of this Indenture;
(ii) such terms have been duly authorized by the
Company and established in conformity with the provisions of this
Indenture; and
(iii) such Notes, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will have been
duly issued under the Indenture and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided
by this Indenture, and enforceable in accordance with their terms,
subject to (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles and (b) the qualification that certain waivers, procedures,
remedies, and other provisions of such Notes and this Indenture may be
unenforceable under or limited by state law;
provided, however, that, with respect to Notes of a series subject to a Periodic
Offering, the Trustee shall be entitled to receive such Opinion of Counsel only
once at or prior to the time of the first authentication of such Notes (provided
that such Opinion of Counsel addresses the authentication and delivery of all
Notes of such series) and that in lieu of the opinions described in clauses (ii)
and (iii) above Counsel may opine that:
23
(x) when the terms of such Notes shall have been established pursuant
to a Company Order or Orders or pursuant to such procedures (acceptable to the
Trustee) 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) such Notes, when authenticated and delivered by the Trustee in
accordance with this Indenture and the Company Order or Orders or 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, will have been duly issued under this Indenture and will constitute
valid and legally binding obligations of the Company, entitled to the benefits
provided by this Indenture, and enforceable in accordance with their terms,
subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles and (b) the qualification
that certain waivers, procedures, remedies, and other provisions of such Notes
and this Indenture may be unenforceable under or limited by state law.
With respect to Notes of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any
such Notes, the form, terms thereof and the legality, validity, binding effect
and enforceability thereof, and compliance of the authentication and delivery
thereof with the terms and conditions of this Indenture, upon the Opinion of
Counsel and other documents delivered pursuant to SECTIONS 2.01 and 3.01 and
this Section, as applicable, at or prior to the time of the first authentication
of Notes of such series unless and until such opinion or other documents have
been superseded or revoked or expire by their terms. In connection with the
authentication and delivery of Notes 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 Notes do not violate any applicable law or any
applicable rule, regulation or order of any governmental agency or commission
having jurisdiction over the Company.
If the form or terms of the Notes of any series have been established
by or pursuant to a Board Resolution or an Officers' Certificate as permitted by
SECTIONS 2.01 and 3.01, the Trustee shall not be required to authenticate such
Notes if the issue of such Notes pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Notes and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by SECTION 3.01 with respect
to any series of Notes, or any Tranche thereof, each Note shall be dated the
date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note 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, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Note shall have been authenticated and
delivered hereunder to the Company but never have been
24
issued and sold by the Company, and the Company shall deliver such Note to the
Trustee for cancellation as provided in SECTION 3.09 together with a written
statement (which need not comply with SECTION 1.02 and need not be accompanied
by an Opinion of Counsel) stating that such Note has never been issued and sold
by the Company, for all purposes of this Indenture such Note shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
Section 3.04 TEMPORARY NOTES.
Pending the preparation of definitive Notes of any series, or any
Tranche thereof, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers or other employees of the Company executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes of any series, or any Tranche thereof, are issued,
the Company will cause definitive Notes of such series or Tranche to be prepared
without unreasonable delay. After the preparation of such definitive Notes, such
temporary Notes shall be exchangeable for such definitive Notes upon surrender
of such temporary Notes at the office or agency of the Company in a Place of
Payment for such series or Tranche, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Notes of any series or Tranche,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Notes of the same series or Tranche, of
any authorized denominations and of like tenor and aggregate principal amount.
Until so exchanged, the temporary Notes of any series or Tranche shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes of such series and Tranche and of like tenor authenticated and delivered
hereunder.
Section 3.05 REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in any other
office or agency of the Company in a Place of Payment being herein sometimes
referred to as the "NOTE REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Trustee is hereby appointed "NOTE
REGISTRAR" for the purpose of registering Notes and transfers of Notes as herein
provided. 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 Notes of one or more series shall be maintained, and the Company
may designate itself the Note Registrar with respect to one or more of such
series; provided, however, that there shall be no more than one Note Register
and one Note Registrar for each series of Notes. The Note Register shall be open
for inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by SECTION 3.01 with
respect to Notes of any series, or any Tranche thereof, upon surrender for
registration of transfer of any Note of a series, or any Tranche thereof, at the
office or agency of the Company in a Place of Payment for
25
that 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 Notes of the same series and Tranche, of any
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by SECTION 3.01 with
respect to Notes of any series, or any Tranche thereof, at the option of the
Holder, Notes of any series or Tranche may be exchanged for other Notes of the
same series and Tranche, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Trustee or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the Note Registrar,
as the case may be, duly executed, by the Holder thereof or his attorney duly
authorized in writing.
Except as otherwise specified as contemplated by SECTION 3.01 with
respect to Notes of any series, or any Tranche thereof, no service charge shall
be made for any registration of transfer or exchange of Notes, 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 Notes, other than exchanges pursuant to SECTION 3.04, 9.06 or 11.07
not involving any transfer.
If the Notes of any series, or any Tranche thereof, are to be redeemed,
the Company shall not be required (A) to issue, register the transfer of or
exchange any Notes of that series, or any Tranche thereof, during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of any such Notes selected for redemption and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Notes:
(1) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Note or a
nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Note shall constitute a single Note for
all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Note may be exchanged in whole or in part for Notes registered, and no transfer
of a Global Note in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Note or a nominee thereof
unless (A) such Depositary (i) has notified the Company that it is
26
unwilling or unable to continue as Depositary for such Global Note or (ii) has
ceased to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect to such
Global Note or (C) there shall exist such circumstances, if any, in addition to
or in lieu of the foregoing as have been specified for this purpose as
contemplated by SECTION 3.01.
(3) Subject to Clause (2) above, any exchange of a Global Note for
other Notes may be made in whole or in part, and all Notes issued in exchange
for a Global Note or any portion thereof shall be registered in such names as
the Depositary for such Global Note shall direct.
(4) Every Note authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Section, SECTION 3.04, 3.06, 9.06 or 11.07 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Note, unless such Note is registered in the name of a Person other than
the Depositary for such Global Note or a nominee thereof.
(5) The Company, the Trustee and any agent of the Company or the
Trustee shall not be responsible for any acts or omissions of a Depositary, for
any Depositary records of beneficial ownership interests or of direct or
indirect participants in such Depositary or for any transactions between a
Depositary and its direct and indirect participants or beneficial owners.
Section 3.06 MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Note 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 (i) evidence
to their satisfaction of the destruction, loss or theft of any Note and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note 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 Note has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note of any series, or any Tranche thereof, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Note shall be at any time
27
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes of that
series and Tranche 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 Notes.
Section 3.07 PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.
Except as otherwise provided as contemplated by SECTION 3.01 with
respect to any series of Notes, or any Tranche thereof, interest on any Note
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 Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Note of any series, or any Tranche thereof, which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "DEFAULTED INTEREST") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Notes of such series, or such Tranche, as the
case may be (or their respective Predecessor Notes) are registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Note of such series, or Tranche, as the case may be, and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given to each Holder of Notes of such
series, or Tranche, as the case may be, in the manner set forth in SECTION 1.06,
not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Notes of such series, or Tranche, as the case may be (or their
respective Predecessor Notes) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Notes of any series, or any Tranche thereof, in any other lawful manner not
inconsistent with the requirements
28
of any securities exchange on which such Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 3.08 PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of and any premium and (subject to
SECTION 3.07) any interest on such Note and for all other purposes whatsoever,
whether or not such Note 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 3.09 CANCELLATION.
All Notes surrendered for payment, redemption, registration of transfer
or exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Notes previously authenticated hereunder which the Company has not issued
and sold, and all Notes so delivered shall be promptly cancelled by the Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Subject to the record retention provisions of the Exchange Act, all
cancelled Notes held by the Trustee shall be disposed of by the Trustee in
accordance with the Trustee's then operating procedures unless otherwise
directed by a Company Order; provided, however, that the Trustee shall not be
required to destroy such cancelled Notes. The Trustee shall promptly deliver
evidence of any cancellation of a Note in accordance with this SECTION 3.09 to
the Company.
Section 3.10 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by SECTION 3.01 for Notes
of any series, or any Tranche thereof, interest on Notes shall be computed on
the basis of a 360-day year of twelve 30-day months and for any period shorter
than a full month, on the basis of the actual number of days elapsed in such
period.
Section 3.11 CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" or "ISIN" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" or "ISIN"
numbers in notices of redemption as a
29
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
Section 3.12 PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Notes 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 Notes
as contemplated by SECTION 3.01, the obligation of the Company to make any
payment of the principal thereof, or the premium or interest thereon, shall not
be discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required Currency by the Trustee, is
less than the full amount of Required Currency then due and payable.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Notes herein expressly provided for), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in SECTION 3.06 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in SECTION 10.03) have been delivered to the Trustee for
cancellation; or
(B) all such Notes not theretofore delivered to the
Trustee for cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Company, and the
Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be
deposited with the Trustee as trust funds in
trust for the purpose of making the
following payment, specifically pledged as
security for, and dedicated solely to, the
benefit of the Holders of such Notes, money
in an amount sufficient to pay and discharge
the entire indebtedness on such Notes not
theretofore delivered to the Trustee for
cancellation, for principal and any premium
and interest to the date of such deposit (in
the case of Notes which have become due and
payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under SECTION 6.07, the obligations of
the Company to any Authenticating Agent under SECTION 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under SECTION 4.02 and the last
paragraph of SECTION 10.03 shall survive.
If the Company shall have paid or caused to be paid the principal of
and premium, if any, and interest on any Note, as and when the same shall have
become due and payable or the Company shall have delivered to the Trustee for
cancellation any outstanding Note, such Note shall cease to be entitled to any
lien or benefit under this Indenture.
Section 4.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of SECTION 10.03, all
money deposited with the Trustee pursuant to SECTION 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
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ARTICLE V
REMEDIES
Section 5.01 EVENTS OF DEFAULT.
"EVENT OF DEFAULT," wherever used herein with respect to Notes of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Note of that series
when it becomes due and payable, and continuance of such default for a period of
60 days; or
(2) default in the payment of the principal of or any premium on any
Note of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Note of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of series of Notes other than that series), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of a majority in principal amount of the
Outstanding Notes of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a "NOTICE
OF DEFAULT" hereunder, unless the Trustee, or the Trustee and Holders of a
principal amount of Notes of such series not less than the principal amount of
Notes 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 Notes, 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
(5) the entry by a court having jurisdiction in the premises of (A) 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 (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition by
one or more persons other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90 consecutive
days; or
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(6) 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 an involuntary 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 other similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the authorization of such action by the Board
of Directors; or
(7) any other Event of Default provided with respect to Notes of that
series.
Section 5.02 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default with respect to Notes of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of a majority in principal amount of the Outstanding Notes of that
series may declare the principal amount of all the Notes of that series (or, if
any Notes of that series are Original Issue Discount Notes, such portion of the
principal amount of such Notes as may be specified by the terms thereof) to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable; provided,
however, that if an Event of Default shall have occurred and be continuing with
respect to more than one series of Notes, the Trustee or the Holders of not less
than a majority in principal amount of the Outstanding Notes of all such series,
considered as one class (and not the Holders of the Notes of any one of such
series), may make such declaration of acceleration.
At any time after such a declaration of acceleration with respect to
Notes of any series has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in this Article
provided, the related Event of Default and its consequences will be
automatically waived, resulting in an automatic rescission and annulment of the
acceleration of the Notes if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Notes of that series,
(B) the principal of (and premium, if any, on) any Notes of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor
in such Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in such
Notes, and
33
(D) all amounts due to the Trustee under SECTION 6.07; and
(2) any other Event of Default with respect to Notes of that series,
other than the non-payment of the principal of Notes of that series which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in SECTION 5.13.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereon.
Section 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Note when
such interest becomes due and payable and such default continues for a period of
60 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Note at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment, when
and as due by the terms of a Note of that series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor in
such Notes, and, in addition thereto, such further amount as shall be sufficient
to cover any amounts due to the Trustee under SECTION 6.07.
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 Notes 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 Notes,
wherever situated.
If an Event of Default with respect to Notes of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Notes 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 5.04 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
34
Company or any other obligor upon the Notes or the property of the Company or
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Notes 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 Notes
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 6.07) 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 amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under SECTION 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding; provided, however, that the
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or other similar
committee.
Section 5.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.
Section 5.06 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Notes in respect of which or for the
benefit of which such monies shall have been collected and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
35
FIRST: To the payment of all amounts due the Trustee (including any
predecessor Trustee) under SECTION 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal
of and any premium and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Notes for
principal and any premium and interest, respectively; and
THIRD: To the payment of the balance, if any, to the Company or any
other Person or Persons legally entitled thereto.
Section 5.07 LIMITATION ON SUITS.
No Holder of any Note of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Notes of that series;
(2) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes 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;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Notes of all series in respect of
which an Event of Default shall have occurred and be continuing, considered as
one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to SECTION 3.07)
interest on such Note on the respective Stated Maturities
36
expressed in such Note (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
Section 5.09 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and 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 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of SECTION 3.06, 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 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Notes 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 5.12 CONTROL BY HOLDERS.
If an Event of Default shall have occurred and be continuing in respect
of a series of Notes, the Holders of a majority in principal amount of the
Outstanding Notes 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
Notes 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 Notes, the
Holders of a majority in aggregate principal amount of the Outstanding Notes of
all such series, considered as one class, shall have the right to make such
direction, and not the Holders of the Notes of any one of such series; and
provided, further, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
37
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of SECTION 6.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
Section 5.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Notes of any series may on behalf of the Holders of all the Notes of
such series waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Note of such series, or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Note of such series affected,
provided, however, that if any such default shall have occurred and be
continuing with respect to more than one such series of Notes, the Holders of a
majority in aggregate principal amount of the Outstanding Notes of all such
series, considered as one class, shall have the right to waive such default, and
not the Holders of the Notes of any one such series.
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 5.14 UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Notes 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 Note on or after the Stated Maturity or
Maturities expressed in such Note (or, in the case of redemption, on or after
the Redemption Date).
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Section 5.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
with respect to Notes of any series,
(1) the Trustee undertakes to perform, with respect
to Notes of such series, such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Notes of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Notes of any
series shall have occurred and be continuing, the Trustee shall exercise,
with respect to Notes of such series, such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this clause (c) shall not be construed to limit
the effect of clause (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
39
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Notes 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 Notes of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.02 NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Notes of any series, the
Trustee shall give the Holders of Notes of such series notice of such default
known to the Trustee as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
SECTION 5.01(4) with respect to Notes of such series, no such notice to Holders
shall be given until at least 75 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Notes of such series.
Section 6.03 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of SECTION 6.01 and to applicable provisions
of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
40
(4) the Trustee may consult with counsel of its selection and the
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;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any Holder pursuant to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(6) 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 the books, records and premises of
the Company, personally or by agent or attorney;
(7) 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
(8) except as otherwise provided in SECTION 5.01(4), the Trustee shall
not be charged with knowledge of any Event of Default with respect to the Notes
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 the Notes or by any Holder of such
Notes.
Section 6.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
NOTES.
The recitals contained herein and in the Notes, 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 Notes. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Notes or the proceeds thereof.
Section 6.05 MAY HOLD NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to SECTIONS 6.08
and 6.13, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or
such other agent.
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Section 6.06 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 6.07 COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, willful misconduct or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless from and
against, any and all loss, damage, claims, liability or expense incurred without
negligence, willful misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including liability which the Trustee may incur as a result of
failure to withhold, pay or report any tax, assessment or other governmental
charges and the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Notes upon all property
and funds held or collected by the Trustee as such, except as otherwise provided
in SECTIONS 4.02 and 13.05.
In addition to the rights provided to the Trustee pursuant to the
provisions of the immediately preceding paragraph of this SECTION 6.07, when the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in SECTION 5.01(5) or SECTION 5.01(6), the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
"Trustee" for purposes of this Section shall include any predecessor
Trustee; provided, however, that the negligence, willful misconduct or bad faith
of any Trustee hereunder shall not affect the rights of any other Trustee
hereunder.
The provisions of this Section shall survive the termination of this
Indenture.
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Section 6.08 CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b)(1) of the Trust Indenture Act, the Trustee 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. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Notes of more than one series or
any indenture or indentures under which securities or certificates of interest
or participation in other securities of the Company or other obligor upon the
Notes are outstanding if the requirements for their exclusion set forth in
Section 310(b)(1) of the Trust Indenture Act are met.
Section 6.09 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Notes of each series, which may be Trustee hereunder for Notes of
one or more other series. Each Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to
the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Notes of any series shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
Section 6.10 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 6.11.
(b) The Trustee may resign at any time with respect to the
Notes 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 6.11
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Notes of such series.
(c) The Trustee may be removed at any time with respect to
the Notes of any series by Act of the Holders of a majority in principal
amount of the Outstanding Notes of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with SECTION
6.08 after written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Note for at least six months, or
43
(2) the Trustee shall cease to be eligible under
SECTION 6.09 or Section 310(a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Notes, or (B) subject to SECTION 5.14, any Holder
who has been a bona fide Holder of a Note for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Notes and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Notes of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Notes of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Notes of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Notes of any particular series) and shall comply with the
applicable requirements of SECTION 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Notes of any series shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding Notes 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 6.11, become the
successor Trustee with respect to the Notes of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Notes of any series shall have been so appointed by
the Company or the Holders and accepted appointment in the manner required by
SECTION 6.11, any Holder who has been a bona fide Holder of a Note of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes of such series.
(f) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Notes pursuant to
subsection (e) of this Section, if the Company shall have delivered to the
Trustee (1) a Board Resolution appointing a successor Trustee, effective as of a
date specified therein, and (2) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee in accordance with SECTION
6.11, the Trustee shall be deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated in SECTION
6.11, all as of such date, and all other provisions of this Section and SECTION
6.11 shall be applicable to such resignation, appointment and acceptance except
to the extent inconsistent with this clause (f).
44
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Notes of any series and each
appointment of a successor Trustee with respect to the Notes of any series to
all Holders of Notes of such series in the manner provided in SECTION 1.06. Each
notice shall include the name of the successor Trustee with respect to the Notes
of such series and the address of its Corporate Trust Office.
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Notes, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Notes of one or more (but not all) series of one or
more series, the Company, the retiring Trustee, and each successor Trustee with
respect to the Notes of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Notes 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
Notes, 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 Notes of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Notes of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Notes of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor
45
Trustee all such rights, powers and trusts referred to in clause (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 6.12 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such Person
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 Notes 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 Notes so authenticated with the same effect as if such successor
Trustee had itself authenticated such Notes.
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Notes (other than by reason of a relationship described
in Section 311(b) of the Trustee 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;
(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 for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation.
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Notes of one or more series, or any Tranche thereof, of Notes which shall
be authorized to act on behalf of the Trustee to authenticate Notes of such
series or Tranche issued upon exchange, registration of transfer or partial
redemption thereof or pursuant to SECTION 3.06, and Notes so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes
46
as if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Notes by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in SECTION 1.06 to all Holders of Notes of
the series, or any Tranche thereof, with respect to which such Authenticating
Agent will serve. 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 and to
reimburse such Authenticating Agent, from time to time, for its reasonable
out-of-pocket expenses incurred under this Section.
If an appointment with respect to the Notes of one or more series or
Tranche is made pursuant to this Section, the Notes of such series or Tranche
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
47
This is one of the Notes of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
JPMorgan Chase Bank
As Trustee
By: _____________________
Authenticating Agent
By: _____________________
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(1) fifteen days after each Regular Record Date, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders
of Notes of each series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Note Registrar.
Section 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS
TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in SECTION 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Note Registrar.
The Trustee may destroy any list furnished to it as provided in SECTION 7.01
upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Notes, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be
48
held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.03 REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any Notes
are listed, with the Commission and with the Company. The Company will promptly
notify the Trustee when any Notes are listed on any stock exchange.
Section 7.04 REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
Delivery of such information, documents and reports to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety
shall be a Person organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and
49
any premium, and interest on all the Notes and the performance or observance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company as a result of such
transaction as having been incurred by the Company at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
Section 8.02 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
SECTION 8.01, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Notes outstanding hereunder.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Notes, all as provided in Article VIII; or
(2) to add to the covenants of the Company or other provisions for the
benefit of the Holders of all or any series of Notes, or any Tranche or Tranches
thereof (and if such covenants are to be for the benefit of less than all series
of Notes, or Tranches thereof, stating that such covenants are expressly being
included solely for the benefit of such series or Tranche or Tranches) or to
surrender any right or power herein conferred upon the Company; or
50
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Notes, or any Tranche or Tranches thereof (and
if such additional Events of Default are to be for the benefit of less than all
series of Notes, or any Tranches thereof, stating that such additional Events of
Default are expressly being included solely for the benefit of such series or
Tranche or Tranches); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Notes in
bearer form, registrable or not registrable as to principal, and with or without
interest coupons, or to permit or facilitate the issuance of Notes in
uncertificated form; or
(5) 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
Notes of any series, or a Tranche thereof, Outstanding on the date of such
indenture supplemental hereto in any material respect, such change, elimination
or addition shall become effective (1) with respect to such series or Tranche
only pursuant to the provisions of SECTION 9.02 hereof or (2) when no Note of
such series or Tranche remains Outstanding; or
(6) to secure the Notes; or
(7) to establish the form or terms of Notes of any series or Tranche as
permitted by SECTIONS 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Notes 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 6.11; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other 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 Notes of any series in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date specified in the first paragraph of this
instrument 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 effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more changes to, or the
elimination of, any provisions hereof which, at the date of the execution and
delivery hereof or at any time
51
thereafter, are required by the Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended to effect such changes or
elimination, and the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to evidence such amendment
hereof.
Section 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of all series then Outstanding under
this Indenture, considered as one class, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture; provided,
however, that if there shall be Notes of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Notes 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 Notes of all series so directly affected,
considered as one class, shall be required; and provided, further, that if the
Notes 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 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 Notes
of all Tranches so directly affected, considered as one class, shall be
required; and provided, further, that no such supplemental indenture shall:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Note, or reduce the principal amount thereof
or the rate of interest thereon (or the amount of any installment of interest
thereon) or change the method of calculating such rate or reduce any premium
payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Note or any other Note which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to SECTION
5.02, or change the coin or currency (or other property) in which any Note or
any premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder of such Note, or
(2) reduce the percentage in principal amount of the Outstanding Notes
of any series or Tranche, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of SECTION 14.04 for
quorum or voting, without, in any such case, the consent of the Holder of such
Note, or
(3) modify any of the provisions of this Section, SECTION 5.13 or
SECTION 10.07 with respect to the Notes of any series, or any Tranche thereof,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Note affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any Holder with
respect to changes in
52
the references to "the Trustee" and concomitant changes in this Section and
SECTION 10.07, or the deletion of this proviso, in accordance with the
requirements of SECTIONS 6.11 and 9.01(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Notes, or one or more Tranches
thereof, or which modifies the rights of the Holders of Notes of such series or
Tranche 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 Notes 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. A waiver by a
Holder of such Holder's right to consent under this Section shall be deemed to
be a consent of such Holder.
Section 9.03 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 6.01) 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 or immunities under this Indenture or otherwise.
Any supplemental indenture permitted by this Article may be executed on
behalf of the Company by any officers or employees that are authorized to do so
in a Board Resolution and may have the Company's corporate seal affixed thereto
or reproduced thereon attested to by its Secretary or one of its Assistant
Secretaries.
Section 9.04 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes 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 9.05 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 9.06 REFERENCE IN NOTES TO SUPPLEMENTAL
INDENTURES.
Notes 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
53
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 Notes 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 Notes of such series or Tranche.
ARTICLE X
COVENANTS
Section 10.01 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Notes that it will duly and punctually pay the principal of and any premium and
interest on the Notes of that series in accordance with the terms of the Notes
and this Indenture.
Section 10.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for the Notes of any
series, or any Tranche thereof, an office or agency where such Notes may be
presented or surrendered for payment, where such Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of such Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes of one or more series, or any Tranche
thereof, may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for Notes of
any series or Tranche for such purposes. The Company will give prompt written
notice to the Trustee, and prompt notice to Holders in the manner specified in
SECTION 1.06, of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 10.03 MONEY FOR NOTES PAYMENTS TO BE HELD IN
TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Notes, or any Tranche thereof, it shall, on or before
each due date of the principal of or any premium or interest on any of the Notes
of that series or Tranche, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and any premium
and interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
54
Whenever the Company shall have one or more Paying Agents for the Notes
of any series, or any Tranche thereof, it will, on or prior to each due date of
the principal of or any premium or interest on any Notes of that series or
Tranche, deposit with a Paying Agent a sum sufficient to pay such amount, such
sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for the Notes of any series,
or any Tranche thereof, other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will (1)
comply with the provisions of the Trust Indenture Act applicable to it as a
Paying Agent and (2) during the continuance of any default by the Company (or
any other obligor upon the Notes of that series or Tranche) in the making of any
payment in respect of the Notes of that series or Tranche, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Notes of that series or Tranche.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Subject to any applicable abandoned property laws, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of or any premium or interest on any Note of any
series, or any Tranche thereof, and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 10.04 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to
55
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 10.05 CORPORATE EXISTENCE.
Subject to the rights of the Company under Article VIII, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
Section 10.06 MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in common
with others, make reasonable effort to cause) all its properties used or useful
in the conduct of its business to be maintained and kept in good condition,
repair and working order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as,
in the judgment of the Company, may be necessary so that the business carried on
in connection therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from discontinuing, or causing
the discontinuance of, the operation and maintenance of any of it properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business.
Section 10.07 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (a) SECTION 10.02 or any additional
covenant or restriction specified with respect to the Notes of any series, or
any Tranche thereof, as contemplated by Section 3.01 if before the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Notes of all series and Tranches with respect to which
compliance with SECTION 10.02 or such additional covenant or restriction is to
be omitted, considered as one class, shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such term,
provision or condition and (b) SECTION 10.06 or Article VIII if before the time
for such compliance the Holders of at least a majority in principal amount of
Notes Outstanding under this Indenture shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition; but, in the case of (a) or (b), no such waiver
shall extend to or affect such term, provision or condition except to the extent
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.
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ARTICLE XI
REDEMPTION OF NOTES
Section 11.01 APPLICABILITY OF ARTICLE.
Notes 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 3.01 for such
Notes of such series or Tranche) in accordance with this Article.
Section 11.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes shall be evidenced by a
Board Resolution, in an Officers' Certificate or in another manner specified as
contemplated by SECTION 3.01 for such Notes. In case of any redemption at the
election of the Company, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Notes of such series to be redeemed and, if applicable, of
the tenor of the Notes to be redeemed. In the case of any redemption of Notes
(a) prior to the expiration of any restriction on such redemption provided in
the terms of such Notes 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 Notes or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.03 SELECTION BY TRUSTEE OF NOTES TO BE
REDEEMED.
If less than all the Notes of any series, or any Tranche thereof, are
to be redeemed, the particular Notes to be redeemed shall be selected by the
Trustee from the Outstanding Notes of such series or Tranche, not previously
called for redemption, by such method as shall be provided for any particular
series or, in the absence of any such provision, by such method of random
selection as the Trustee shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Notes of such series or any integral multiple
thereof) of the principal amount of Notes of such series of a denomination
larger than the minimum authorized denomination for Notes of such series;
provided, however, that if, as indicated in an Officers' Certificate, the
Company shall have offered to purchase all or any principal amount of the Notes
then Outstanding of any series, and less than all of such Notes as to which such
offer was made shall have been tendered to the Company for such purchase, the
Trustee, if so directed by Company Order, shall select for redemption all or any
principal amount of such Notes which have not been so tendered.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption as aforesaid and, in case of any Notes selected for
partial redemption as aforesaid, 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 Notes shall relate, in
the case of any Notes redeemed or to be
57
redeemed only in part, to the portion of the principal amount of such Notes
which has been or is to be redeemed.
Section 11.04 NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by SECTION 3.01 for Notes
of any series, or Tranche thereof, notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Notes to be redeemed, at his
address appearing in the Note Register.
All notices of redemption shall identify the Notes to be redeemed
(including CUSIP and/or ISIN number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes of any series or Tranche and
of a specified tenor consisting of more than a single Note are to be redeemed,
the identification (and, in the case of partial redemption of any such Notes,
the principal amounts) of the particular Notes to be redeemed and, if less than
all the Outstanding Notes of any series or Tranche and of a specified tenor
consisting of a single Note are to be redeemed, the principal amount of the
particular Note to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Note to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(5) the place or places where each such Note is to be surrendered for
payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case, and
(7) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Notes of any series or
Tranche thereof in accordance with SECTION 3.01, with respect to any notice of
redemption of Notes at the election of the Company, unless, upon the giving of
such notice, such Notes shall be deemed to have been paid in accordance with
Article IV, such notice may state that such redemption shall be conditional upon
the receipt by the Paying Agent or Agents for such Notes, 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 Notes 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 Notes. 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
58
the Notes otherwise to have been redeemed shall promptly return to the Holders
thereof any of such Notes which had been surrendered for payment upon such
redemption.
Notice of redemption of Notes 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, at the Company's request, by the
Trustee in the name and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Trustee in the name and at the
expense of the Company.
Section 11.05 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in SECTION 10.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest, if any, on, all the
Notes which are to be redeemed on that date.
Section 11.06 NOTES 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 Notes 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) such Notes shall cease to
bear interest. Upon surrender of any such Note for redemption in accordance with
said notice, such Note shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by SECTION 3.01 with
respect to Notes of any series, or Tranche thereof, any installment of interest
on any Note, the Stated Maturity of which is on or prior to the Redemption Date
will be payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of SECTION 3.07.
Section 11.07 NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes of the same series and Tranche and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Note so surrendered.
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ARTICLE XII
SINKING FUNDS
Section 12.01 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Notes of any series, or any Tranche thereof, except as
otherwise specified as contemplated by SECTION 3.01 for Notes of such series or
Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of any Notes of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Notes of any series, or any Tranche thereof,
is herein referred to as an "optional sinking fund payment". If provided for by
the terms of any Notes of any series, or any Tranche thereof, the cash amount of
any sinking fund payment may be subject to reduction as provided in SECTION
12.02. Each sinking fund payment shall be applied to the redemption of Notes of
the series or Tranche as provided for by the terms of such Notes.
Section 12.02 SATISFACTION OF SINKING FUND PAYMENTS WITH
NOTES.
The Company (1) may deliver Outstanding Notes of a series, or any
Tranche thereof (other than any previously called for redemption) and (2) may
apply as a credit Notes of such series or Tranche, which have been (a) redeemed
either at the election of the Company pursuant to the terms of such Notes or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Notes or (b) purchased by the Company in the open market, by
tender offer or otherwise, in each case in satisfaction of all or any part of
any sinking fund payment with respect to any Notes of such series required to be
made pursuant to the terms of such Notes as and to the extent provided for by
the terms of such Notes; provided that the Notes to be so credited have not been
previously so credited. The Notes to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Notes so to be redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03 REDEMPTION OF NOTES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for the
Notes of any series, or any Tranche thereof, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for such series or Tranche pursuant to the terms of such
Notes, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Notes of such series or Tranche pursuant to SECTION 12.02 and stating
the basis for such credit and that such Notes have not been previously so
credited and will also deliver to the Trustee any Notes to be so delivered. Not
less than 30 days prior to each such sinking fund payment date, the Trustee
shall select the Notes to be redeemed upon such sinking fund payment date in the
manner specified in SECTION 11.03 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in SECTION
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11.04. Such notice having been duly given, the redemption of such Notes shall be
made upon the terms and in the manner stated in SECTIONS 11.06 and 11.07.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01 COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have SECTION 13.02
applied to any Notes or the Notes of any series, or any Tranche thereof, as the
case may be, designated pursuant to SECTION 3.01 as being defeasible pursuant to
such SECTION 13.02, in accordance with any applicable requirements provided
pursuant to SECTION 3.01 and upon compliance with the conditions set forth below
in this Article. The Company may elect, at its option at any time, to have
SECTION 13.03 applied to the Notes or the Notes of any series, but not to
Tranches thereof alone, as the case may be, designated pursuant to SECTION 3.01
as being defeasible pursuant to SECTION 13.03, in accordance with any applicable
requirements provided pursuant to SECTION 3.01 and upon compliance with the
conditions set forth below in this Article. Any such election shall be evidenced
by a Board Resolution or in another manner specified as contemplated by SECTION
3.01 for such Notes.
Section 13.02 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Notes or the Notes of any series, or any Tranche thereof, as the
case may be, the Company shall be deemed to have been discharged from its
obligations with respect to such Notes as provided in this Section on and after
the date the conditions set forth in SECTION 13.04 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by such Notes and to have satisfied all its other obligations under such Notes
and this Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Notes to receive,
solely from the trust fund described in SECTION 13.04 and as more fully set
forth in such Section, payments in respect of the principal of and any premium
and interest on such Notes when payments are due, (2) the Company's obligations
with respect to such Notes under SECTIONS 3.04, 3.05, 3.06, 10.02 and 10.03 and
with respect to the Trustee under SECTION 6.07, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Notes notwithstanding the prior exercise of its
option (if any) to have Section 13.03 applied to such Notes.
Section 13.03 COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have this Section
applied to the Notes or the Notes of any series, but not to Tranches thereof
alone, as the case may be, (1) the
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Company shall be released from its obligations under SECTION 10.06, and any
covenants provided pursuant to SECTION 3.01(20), 9.01(2), 9.01(6) or 9.01(7) and
5.01(7) for the benefit of the Holders of such Notes and (2) the occurrence of
any event specified in SECTION 5.01(4) (with respect to any of SECTION 10.06,
and any such covenants provided pursuant to SECTION 3.01(20), 9.01(2), 9.01(6)
or 9.01(7) and 5.01(7)) shall be deemed not to be or result in an Event of
Default with respect to such Notes as provided in this Section on and after the
date the conditions set forth in SECTION 13.04 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that,
with respect to such Notes, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of SECTION
5.01(4)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Notes shall be unaffected thereby.
Section 13.04 CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to the application of SECTION
13.02 or SECTION 13.03, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Notes, (A) money in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, the principal of
and any premium and interest on such Notes on the respective Stated Maturities
or on any Redemption Date established pursuant to Clause (9) below, in
accordance with the terms of this Indenture and such Notes. As used herein,
"U.S. Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt.
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(2) In the event of an election to have SECTION 13.02 apply to any
Notes or the Notes of any series, or any Tranche thereof, as the case may be,
the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this instrument,
there has been a change in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Notes will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Notes and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have SECTION 13.03 apply to the
Notes or the Notes of any series, but not Tranches thereof alone, as the case
may be, the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Notes will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant Defeasance
to be effected with respect to such Notes and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Notes nor any other Notes of the
same series, as the case may be, if then listed on any securities exchange, will
be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Notes or any other Notes shall
have occurred and be continuing at the time of such deposit or, with regard to
any such event specified in SECTIONS 5.01(5) and (6), at any time on or prior to
the 90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Notes are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) If the Notes are to be redeemed prior to Stated Maturity (other
than from mandatory sinking fund payments or analogous payments), notice of such
redemption shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made.
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(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 13.05 DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of SECTION 10.03, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee pursuant to SECTION 13.04 in respect of any Notes shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any such
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Notes, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to SECTION 13.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Notes.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in SECTION 13.04
with respect to any Notes which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Notes.
Section 13.06 REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Notes by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture and such Notes from which the Company has been discharged or released
pursuant to SECTION 13.02 or 13.03 shall be revived and reinstated as though no
deposit had occurred pursuant to this Article with respect to such Notes, until
such time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to SECTION 13.05 with respect to such Notes in accordance with
this Article; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any such Note following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Notes to receive such payment from the money so
held in trust.
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ARTICLE XIV
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 14.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Notes of one or more, or all, series, or one or
more 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 Notes of such series or Tranches.
Section 14.02 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Notes of one or more, or all, series, or one or more Tranches thereof, for any
purpose specified in SECTION 14.01, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in SECTION 1.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Notes of one or more, or all, series, or one or more
Tranches thereof, by the Company or by the Holders of 33% in aggregate principal
amount of Notes of all of such series and Tranches, considered as one class, for
any purpose specified in SECTION 14.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Notes of such
series and Tranches, in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City of New
York, or in such other place as shall be determined or approved by the Company,
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in clause (a) of this Section.
(c) Any meeting of Holders of Notes of one or more, or all,
series, or one or more Tranches thereof, shall be valid without notice if
Holders of all Outstanding Notes of such series, or Tranches are present in
person or by proxy and if representatives of the Company and the Trustee are
present, or notice is waived in writing before or after the meeting by the
Holders of all Outstanding Notes of such series or Tranches 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 14.03 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Notes of one or
more, or all, series, or Tranche or Tranches thereof, a Person shall be (a) a
Holder of one or more Outstanding Notes 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 Notes of such series or Tranches by such Holder
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or Holders. The only persons who shall be entitled to attend any meeting of
Holders of Notes of any series or Tranches 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 14.04 QUORUM: ACTION.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Notes 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 Notes 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 Notes of such series and Tranches, considered as one class, the
Persons entitled to vote such specified percentage in principal amount of the
Outstanding Notes 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 Notes 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 clause
(e) of SECTION 14.05, notice of the reconvening of any meeting adjourned for
more than 30 days shall be given as provided in clause (a) of SECTION 14.02 not
less than ten days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Notes of such series and Tranches, which shall constitute a quorum.
Except as limited by SECTION 9.02, 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 Notes 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 Notes 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 Notes of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of
Notes duly held in accordance with this Section shall be binding on all the
Holders of Notes of the series and Tranches, with respect to which such meeting
shall have been held, whether or not present or represented at the meeting.
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Section 14.05 ATTENDANCE AT MEETINGS; DETERMINATION OF
VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Notes 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 Notes with respect
to which it was given unless and until specifically revoked by the Holder or
future Holder of such Notes 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 Notes in regard to proof of the holding of such Notes
and of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Notes shall be
proved in the manner specified in SECTION 1.04 and the appointment of any proxy
shall be proved in the manner specified in SECTION 1.04. 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 1.04 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 clause (b) of SECTION 14.02, in
which case the Company or the Holders of Notes 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 Notes of all series and Tranches
represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to
one vote for each $1 principal amount of Notes held or represented by him or
her; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note 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 Note or proxy.
(e) Any meeting duly called pursuant to SECTION 14.02 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 Notes 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 14.06 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 Notes, 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 of
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the proceedings of each meeting of Holders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
SECTION 14.02 and, if applicable, SECTION 14.04. 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 14.07 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 1.04.
ARTICLE XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 15.01 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 Notes, 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, employee, officer or director,
as such, past, present or future of the Company or of any predecessor or
successor corporation (either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all
Notes are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
employee, officer or director, past, present or future, of the Company or of 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 Notes or to be implied
herefrom or therefrom, and that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the Notes.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
PNM RESOURCES, INC.
By: __________________________
Name:
Title:
JPMORGAN CHASE BANK
as Trustee
By: __________________________
Name:
Title:
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