Exhibit 4(a)
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ONCOR ELECTRIC DELIVERY COMPANY,
ISSUER
TO
THE BANK OF NEW YORK,
TRUSTEE
---------
INDENTURE (FOR UNSECURED DEBT SECURITIES)
DATED AS OF AUGUST 1, 2002
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ONCOR ELECTRIC DELIVERY COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of August 1, 2002
Trust Indenture Act Section Indenture Section
ss.310 (a)(1)........................... 1009
(a)(2)........................... 1009
(a)(3)........................... 1014
(a)(4)........................... Not Applicable
(b).............................. 1008, 1010
ss.311 (a).............................. 1013
(b).............................. 1013
(c).............................. Not Applicable
ss.312 (a).............................. 1101
(b).............................. 1101
(c).............................. 1101
ss.313 (a).............................. 1102
(b)(1)........................... Not Applicable
(b)(2)........................... 1102
(c).............................. 1102
(d).............................. 1102
ss.314 (a).............................. 1102
(a)(4)........................... 705
(b).............................. Not Applicable
(c)(1)........................... 102
(c)(2)........................... 102
(c)(3)........................... Not Applicable
(d).............................. Not Applicable
(e).............................. 102
ss.315 (a).............................. 1001
(b).............................. 1002
(c).............................. 1001
(d).............................. 1001
(e).............................. 914
ss.316 (a).............................. 912, 913
(a)(1)(A)........................ 902, 912
(a)(1)(B)........................ 913
(a)(2)........................... Not Applicable
(b).............................. 908
ss.317 (a)(1)........................... 903
(a)(2)........................... 904
(b).............................. 703
ss.318 (a).............................. 107
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TABLE OF CONTENTS
PARTIES......................................................................1
RECITALS OF THE COMPANY......................................................1
ARTICLE One Definitions and Other Provisions of General Application..........1
SECTION 101. Definitions................................................1
"1983 Mortgage"........................................................2
"2002 Indenture".......................................................2
"Act"..................................................................2
"Affiliate"............................................................2
"Authenticating Agent".................................................2
"Authorized Officer"...................................................2
"Benefitted Securities"................................................2
"Board of Directors"...................................................2
"Board Resolution".....................................................2
"Business Day".........................................................2
"Capitalization".......................................................3
"Capitalized Lease Liabilities"........................................3
"Class A Bonds"........................................................3
"Class A Mortgage".....................................................3
"Commission"...........................................................3
"Company"..............................................................3
"Company Order" or "Company Request"...................................3
"Corporate Trust Office"...............................................3
"corporation"..........................................................3
"Debt".................................................................3
"Defaulted Interest"...................................................3
"Discount Security"....................................................3
"Dollar" or "$"........................................................4
"Electric Utility Property"............................................4
"Eligible Obligations".................................................4
"Event of Default".....................................................4
"Excepted Property"....................................................4
"Exchange Act".........................................................6
"Execution Date".......................................................6
"Expert"...............................................................6
"Expert's Certificate".................................................6
"Fair Value"...........................................................6
"Governmental Authority"...............................................6
"Government Obligations"...............................................6
"Holder"...............................................................7
"Indenture"............................................................7
"Independent"..........................................................7
"Independent Expert's Certificate".....................................7
"interest".............................................................7
"Interest Payment Date"................................................7
"Investment Securities"................................................7
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"Lien".................................................................8
"Maturity".............................................................8
"Net Tangible Assets"..................................................8
"Notice of Default"....................................................8
"Officer's Certificate"................................................8
"Opinion of Counsel"...................................................8
"Outstanding"..........................................................8
"Paying Agent"........................................................10
"Periodic Offering"...................................................10
"Permitted Secured Debt"..............................................10
"Person"..............................................................10
"Place of Payment"....................................................10
"Predecessor Security"................................................10
"Purchase Money Lien".................................................10
"Redemption Date".....................................................11
"Redemption Price"....................................................11
"Regular Record Date".................................................11
"Required Currency"...................................................11
"Responsible Officer".................................................11
"Secured Debt"........................................................11
"Secured Obligations".................................................11
"Securities"..........................................................11
"Securities Act"......................................................11
"Security Register" and "Security Registrar"..........................11
"Special Record Date".................................................11
"Stated Interest Rate"................................................11
"Stated Maturity".....................................................12
"Successor Company"...................................................12
"supplemental indenture" or "indenture supplemental hereto"...........12
"Tranche".............................................................12
"Trustee".............................................................12
"Trust Indenture Act".................................................12
"United States".......................................................12
SECTION 102. Compliance Certificates and Opinions......................12
SECTION 103. Form of Documents Delivered to Trustee....................13
SECTION 104. Acts of Holders...........................................14
SECTION 105. Notices, Etc. to Trustee or Company.......................15
SECTION 106. Notice to Holders of Securities; Waiver...................16
SECTION 107. Conflict with Trust Indenture Act.........................17
SECTION 108. Effect of Headings and Table of Contents..................17
SECTION 109. Successors and Assigns....................................17
SECTION 110. Separability Clause.......................................17
SECTION 111. Benefits of Indenture.....................................17
SECTION 112. Governing Law.............................................17
SECTION 113. Legal Holidays............................................17
SECTION 114. Investment of Cash Held by Trustee........................18
ARTICLE Two Security Forms..................................................18
SECTION 201. Forms Generally...........................................18
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SECTION 202. Form of Trustee's Certificate of Authentication...........19
ARTICLE Three The Securities................................................19
SECTION 301. Amount Unlimited; Issuable in Series......................19
SECTION 302. Denominations.............................................22
SECTION 303. Execution, Authentication, Delivery and Dating............22
SECTION 304. Temporary Securities......................................25
SECTION 305. Registration, Registration of Transfer and Exchange.......25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........26
SECTION 307. Payment of Interest; Interest Rights Preserved............27
SECTION 308. Persons Deemed Owners.....................................28
SECTION 309. Cancellation..............................................28
SECTION 310. Computation of Interest...................................29
SECTION 311. Payment to Be in Proper Currency..........................29
SECTION 312. Extension of Interest Payment.............................29
SECTION 313. CUSIP Numbers.............................................29
ARTICLE Four Securities of the First and Second Series......................30
ARTICLE Five Redemption of Securities.......................................30
SECTION 501. Applicability of Article..................................30
SECTION 502. Election to Redeem; Notice to Trustee.....................30
SECTION 503. Selection of Securities to Be Redeemed....................30
SECTION 504. Notice of Redemption......................................31
SECTION 505. Securities Payable on Redemption Date.....................32
SECTION 506. Securities Redeemed in Part...............................32
ARTICLE Six Sinking Funds...................................................33
SECTION 601. Applicability of Article..................................33
SECTION 602. Satisfaction of Sinking Fund Payments with Securities.....33
SECTION 603. Redemption of Securities for Sinking Fund.................33
ARTICLE Seven Representations and Covenants.................................34
SECTION 701. Payment of Securities.....................................34
SECTION 702. Maintenance of Office or Agency...........................34
SECTION 703. Money for Securities Payments to Be Held in Trust.........35
SECTION 704. Corporate Existence.......................................36
SECTION 705. Annual Officer's Certificate as to Compliance.............36
SECTION 706. Waiver of Certain Covenants...............................36
SECTION 707. Limitation on Secured Debt................................36
ARTICLE Eight Satisfaction and Discharge....................................40
SECTION 801. Satisfaction and Discharge of Securities..................40
SECTION 802. Satisfaction and Discharge of Indenture...................42
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SECTION 803. Application of Trust Money................................42
ARTICLE Nine Events of Default; Remedies....................................43
SECTION 901. Events of Default.........................................43
SECTION 902. Acceleration of Maturity; Rescission and Annulment........44
SECTION 903. Collection of Indebtedness and Suits for Enforcement by
Trustee...................................................45
SECTION 904. Trustee May File Proofs of Claim..........................46
SECTION 905. Trustee May Enforce Claims Without Possession of
Securities................................................46
SECTION 906. Application of Money Collected............................46
SECTION 907. Limitation on Suits.......................................47
SECTION 908. Unconditional Right of Holders to Receive Principal,
Premium and Interest......................................47
SECTION 909. Restoration of Rights and Remedies........................48
SECTION 910. Rights and Remedies Cumulative............................48
SECTION 911. Delay or Omission Not Waiver..............................48
SECTION 912. Control by Holders of Securities..........................48
SECTION 913. Waiver of Past Defaults...................................48
SECTION 914. Undertaking for Costs.....................................49
SECTION 915. Waiver of Usury, Stay or Extension Laws...................49
ARTICLE Ten The Trustee.....................................................49
SECTION 1001. Certain Duties and Responsibilities.......................49
SECTION 1002. Notice of Defaults........................................50
SECTION 1003. Certain Rights of Trustee.................................50
SECTION 1004. Not Responsible for Recitals or Issuance of Securities....51
SECTION 1005. May Hold Securities.......................................51
SECTION 1006. Money Held in Trust.......................................52
SECTION 1007. Compensation and Reimbursement............................52
SECTION 1008. Disqualification; Conflicting Interests...................53
SECTION 1009. Corporate Trustee Required; Eligibility...................53
SECTION 1010. Resignation and Removal; Appointment of Successor.........53
SECTION 1011. Acceptance of Appointment by Successor....................55
SECTION 1012. Merger, Conversion, Consolidation or Succession to
Business..................................................55
SECTION 1013. Preferential Collection of Claims Against Company.........55
SECTION 1014. Co-trustee and Separate Trustees..........................56
SECTION 1015. Appointment of Authenticating Agent.......................57
ARTICLE Eleven Holders' Lists and Reports by Trustee and Company............58
SECTION 1101. Lists of Holders..........................................58
SECTION 1102. Reports by Trustee and Company............................58
ARTICLE Twelve Consolidation, Merger, Conveyance, or Other Transfer.........59
SECTION 1201. Company may Consolidate, etc., Only on Certain Terms......59
SECTION 1202. Successor Company Substituted.............................60
SECTION 1203. Release of Company upon Conveyance or Other Transfer......60
SECTION 1204. Merger into Company.......................................60
SECTION 1205. Transfer of Less than Substantially All...................60
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ARTICLE Thirteen Supplemental Indentures....................................61
SECTION 1301. Supplemental Indentures Without Consent of Holders........61
SECTION 1302. Supplemental Indentures With Consent of Holders...........62
SECTION 1303. Execution of Supplemental Indentures......................64
SECTION 1304. Effect of Supplemental Indentures.........................64
SECTION 1305. Conformity With Trust Indenture Act.......................64
SECTION 1306. Reference in Securities to Supplemental Indentures........64
SECTION 1307. Modification Without Supplemental Indenture...............65
ARTICLE Fourteen Meetings of Holders; Action Without Meeting................65
SECTION 1401. Purposes for Which Meetings May Be Called.................65
SECTION 1402. Call, Notice and Place of Meetings........................65
SECTION 1403. Persons Entitled to Vote at Meetings......................66
SECTION 1404. Quorum; Action............................................66
SECTION 1405. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.......................67
SECTION 1406. Counting Votes and Recording Action of Meetings...........68
SECTION 1407. Action Without Meeting....................................68
ARTICLE Fifteen Immunity of Incorporators, Shareholders, Officers and
Directors.................................................................68
SECTION 1501. Liability Solely Corporate................................68
Testimonium.................................................................70
Signatures..................................................................70
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INDENTURE, dated as of August 1, 2002 (the "Execution Date") between
ONCOR ELECTRIC DELIVERY COMPANY, a Texas corporation (the "Company"), having its
principal office at 000 X. Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 and THE BANK OF NEW
YORK, a New York banking corporation, having its principal corporate trust
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Trustee (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 unsecured debt
securities (the "Securities") in an unlimited aggregate principal amount, to be
issued in one or more series as contemplated herein, and to provide security for
the payment of the principal of and premium and interest, if any, on the
Securities;
All acts necessary to make this Indenture a valid agreement of the
Company have been performed. For all purposes of this Indenture, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to them in
Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and of the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and ratable benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in the
Trust Indenture Act as in effect on the Execution Date, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all terms used herein without definition which are defined in the
Uniform Commercial Code of New York as in effect on the Execution Date shall
have the meanings assigned to them therein;
(d) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date of such
computation or, at the election of the Company from time to time, at the
Execution Date; provided, however, that in determining generally accepted
accounting principles applicable to the Company, effect shall be given, to the
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extent required, to any order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having jurisdiction over the
Company;
(e) any reference to an "Article" or a "Section" refers to an Article
or a Section, as the case may be, of this Indenture; and
(f) 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.
"1983 MORTGAGE" means the Mortgage and Deed of Trust, dated as of
December 1, 1983, by and between the Company (formerly TXU Electric Delivery
Company), which succeeded to and was substituted for TXU Electric Company
(formerly Texas Utilities Electric Company and now named TXU US Holdings
Company), and Irving Trust Company (now The Bank of New York), as supplemented
and modified from time to time.
"2002 INDENTURE" means the Indenture and Deed of Trust, dated as of
May 1, 2002, by and between the Company and The Bank of New York, as
supplemented and modified from time to time.
"ACT", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct generally the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "CONTROLLING" and "CONTROLLED" have meanings
correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person or Persons (other than the
Company or an Affiliate of the Company) authorized by the Trustee to act on
behalf of the Trustee to authenticate the Securities of one or more series.
"AUTHORIZED OFFICER" means the Chairman of the Board, the Vice
Chairman, the President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other officer, manager or agent of the Company duly authorized
pursuant to a Board Resolution to act in respect of matters relating to this
Indenture.
"BENEFITTED SECURITIES" has the meaning specified in Section 707.
"BOARD OF DIRECTORS" means either the board of directors, board of
managers or similar governing body of the Company or any committee thereof duly
authorized to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary, an Assistant Secretary or an Authorized Officer of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment or any
other particular location specified in the Securities or this Indenture, means
any day, other than a Saturday or Sunday, which is not a day on which banking
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institutions or trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
"CAPITALIZATION" has the meaning specified in Section 707.
"CAPITALIZED LEASE LIABILITIES" has the meaning specified in
Section 707.
"CLASS A BONDS" means bonds or other obligations now or hereafter
issued and Outstanding under any Class A Mortgage or Mortgages.
"CLASS A MORTGAGE" means the 1983 Mortgage and each other mortgage or
deed of trust or similar indenture, as amended and supplemented from time to
time, (i) to which any corporation that is subsequently merged into or
consolidated with the Company was a party at the time of such merger or
consolidation or (ii)(A) which constitutes a Lien on property conveyed or
otherwise transferred to the Company and (B) the obligations of the mortgagor
under which have been duly assumed by the Company, and, in the case of either
(i) or (ii) above, which is hereafter designated an additional Class A Mortgage
in an indenture supplemental to and executed and delivered in accordance with
the 2002 Indenture.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the Execution Date such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY ORDER" or "COMPANY REQUEST" means, respectively, a written
order or request, as the case may be, signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the Execution Date is located at 000 Xxxxxxx
Xxxxxx - 0X, Xxx Xxxx, Xxx Xxxx 00000.
"CORPORATION" means a corporation, association, company, limited
liability company, partnership, limited partnership, joint stock company or
business trust, and references to "corporate" and other derivations of
"corporation" herein shall be deemed to include appropriate derivations of such
entities.
"DEBT" has the meaning specified in Section 707.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DISCOUNT SECURITY" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 902.
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"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.
"ELECTRIC UTILITY PROPERTY" means any facilities, machinery, equipment
and fixtures for the transmission and distribution of electric energy, including
switchyards, towers, substations, transformers, poles, lines, cable, conduits,
ducts, conductors, meters, regulators and all other property of the Company,
real or personal, or improvements, extensions, additions, renewals or
replacements of the foregoing, in each case used or useful or to be used in or
in connection with the business of transmitting and distributing electric
energy, whether owned by the Company at the Execution Date or hereafter acquired
(other than Excepted Property with respect to all of the property described in
this definition).
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations or, if specified pursuant to Section 301 with
respect to any Securities, other Investment Securities; or
(b) with respect to Securities denominated in a currency other
than Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 901.
"EXCEPTED PROPERTY" means:
(a) all cash on hand or in banks or other financial
institutions, deposit accounts, securities accounts, shares of stock,
interests in business trusts, general or limited partnerships or
limited liability companies, bonds, notes, other evidences of
indebtedness and other securities, security entitlements and
investment property, of whatsoever kind and nature, not hereafter paid
or delivered to, deposited with or held by the Trustee hereunder or
required so to be;
(b) all contracts, leases, operating agreements and other
agreements of whatsoever kind and nature; all contract rights, bills,
notes and other instruments and chattel paper (except to the extent
that any of the same constitute securities, security entitlements or
investment property, in which case they are separately excepted under
clause (a) above); all revenues, income and earnings, all accounts,
accounts receivable, rights to payment, payment intangibles and
unbilled revenues, transition property, and all rents, tolls, issues,
product and profits, claims, credits, demands and judgments; all
governmental and other licenses, permits, franchises, consents and
allowances; all patents, patent licenses and other patent rights,
patent applications, trade names, trademarks, copyrights and other
intellectual property; and all claims, credits, choses in action,
commercial tort claims and other intangible property and general
intangibles including, but not limited to, computer software;
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(c) all automobiles, buses, trucks, truck cranes, tractors,
trailers and similar vehicles and movable equipment; all rolling
stock, rail cars and other railroad equipment; all vessels, boats,
barges, and other marine equipment; all airplanes, helicopters,
aircraft engines and other flight equipment; all parts, accessories
and supplies used in connection with any of the foregoing; and all
personal property of such character that the perfection of a security
interest therein or other Lien thereon is not governed by the Uniform
Commercial Code as in effect in the jurisdiction in which such
property is located;
(d) all goods, stock in trade, wares, merchandise and inventory
held for the purpose of sale or lease in the ordinary course of
business; all materials, supplies, inventory and other items of
personal property which are consumable (otherwise than by ordinary
wear and tear) in their use in the operation of the Electric Utility
Property; all fuel, including nuclear fuel, whether or not any such
fuel is in a form consumable in the operation of the Electric Utility
Property, including separate components of any fuel in the forms in
which such components exist at any time before, during or after the
period of the use thereof as fuel; all hand and other portable tools
and equipment; all furniture and furnishings; and computers and data
processing, data storage, data transmission, telecommunications and
other facilities, equipment and apparatus, which, in any case, are
used primarily for administrative or clerical purposes or are
otherwise not necessary for the operation or maintenance of the
Electric Utility Property;
(e) all coal, lignite, ore, gas, oil and other minerals and all
timber, and all rights and interests in any of the foregoing, whether
or not such minerals or timber shall have been mined or extracted or
otherwise separated from the land; and all electric energy and
capacity, gas (natural or artificial), steam, water and other products
generated, produced, manufactured, purchased or otherwise acquired by
the Company;
(f) all real property, leaseholds, gas rights, xxxxx, gathering,
tap or other pipe lines, or facilities, equipment or apparatus, in any
case used or to be used primarily for the production or gathering of
natural gas;
(g) all property which is the subject of a lease agreement
designating the Company as lessee and all right, title and interest of
the Company in and to such property and in, to and under such lease
agreement, whether or not such lease agreement is intended as
security;
(h) all property located outside of the State of Texas;
(i) any and all property and plants used by the Company in the
generation of electricity; and
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(j) all property not acquired or constructed by the Company for
use in its electric transmission and distribution business.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXECUTION DATE" has the meaning specified in the first paragraph of
this Indenture.
"EXPERT" means a Person which is an engineer, appraiser or other
expert and which, with respect to any certificate to be signed by such Person
and delivered to the Trustee, is qualified to pass upon the matters set forth in
such certificate. For purposes of this definition, (a) "engineer" means a Person
engaged in the engineering profession or otherwise qualified to pass upon
engineering matters (including, but not limited to, a Person licensed as a
professional engineer, whether or not then engaged in the engineering
profession) and (b) "appraiser" means a Person engaged in the business of
appraising property or otherwise qualified to pass upon the Fair Value or fair
market value of property.
"EXPERT'S CERTIFICATE" means a certificate signed by an Authorized
Officer and by an Expert (which Expert (a) shall be selected either by the Board
of Directors or by an Authorized Officer, the execution of such certificate by
such Authorized Officer to be conclusive evidence of such selection, and (b)
except as otherwise required in Section 1205, may be an employee or Affiliate of
the Company) and delivered to the Trustee. The amount stated in any Expert's
Certificate as to the Fair Value or fair market value of property shall be
conclusive and binding upon the Company, the Trustee and the Holders of the
Securities.
"FAIR VALUE", with respect to property, means the fair value of such
property as may be determined by reference to (a) the amount which would be
likely to be obtained in an arm's-length transaction with respect to such
property between an informed and willing buyer and an informed and willing
seller, under no compulsion, respectively, to buy or sell, (b) the amount of
investment with respect to such property which, together with a reasonable
return thereon, would be likely to be recovered through ordinary business
operations or otherwise, (c) the cost, accumulated depreciation, and replacement
cost with respect to such property and/or (d) any other relevant factors;
provided, however, that the Fair Value of property shall be determined without
deduction for any Liens on such property. Fair Value may be determined, without
physical inspection, by the use of accounting and engineering records and other
data maintained by the Company or otherwise available to the Expert certifying
the same.
"GOVERNMENTAL AUTHORITY" means the government of the United States or
of any State or Territory thereof or of the District of Columbia or of any
county, municipality or other political subdivision of any thereof, or any
department, agency, authority or other instrumentality of any of the foregoing.
"GOVERNMENT OBLIGATIONS" means securities which are (a) (i) direct
obligations of the United States where the payment or payments thereunder are
supported by the full faith and credit of the United States or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States where the timely payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by the United States or (b) depository receipts issued by a bank (as defined in
Section 3(a)(2) of the Securities Act, which may include the Trustee or any
Paying Agent) as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of or other amount with respect to
any such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
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custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced
by such depository receipt.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Indenture and any such supplemental indenture,
respectively. The term "Indenture" shall also include the provisions or terms of
particular series of Securities established in any Officer's Certificate, Board
Resolution or Company Order delivered pursuant to Sections 201, 301, 303 and
1307.
"INDEPENDENT", when applied to any Expert, means such a Person who
(a) is in fact independent, (b) does not have any direct material financial
interest in the Company or in any other obligor upon the Securities or in any
Affiliate of the Company or of such other obligor, (c) is not connected with the
Company or such other obligor as an officer, employee, promoter, underwriter,
trustee, partner, director or any person performing similar functions and (d) is
approved by the Trustee in the exercise of reasonable care.
"INDEPENDENT EXPERT'S CERTIFICATE" means a certificate signed by an
Independent Expert and delivered to the Trustee.
"INTEREST" with respect to a Discount Security means interest, if any,
borne by such Security at a Stated Interest Rate rather than interest calculated
at any imputed rate.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"INVESTMENT SECURITIES" means any of the following obligations or
securities on which neither the Company, any other obligor on the Securities nor
any Affiliate of either is the obligor: (a) Government Obligations; (b) interest
bearing deposit accounts (which may be represented by certificates of deposit)
in any national or state bank (which may include the Trustee or any Paying
Agent) or savings and loan association which has outstanding securities rated by
a nationally recognized rating organization in either of the two (2) highest
rating categories (without regard to modifiers) for short term securities or in
any of the three (3) highest rating categories (without regard to modifiers) for
long term securities; (c) bankers' acceptances drawn on and accepted by any
commercial bank (which may include the Trustee or any Paying Agent) which has
outstanding securities rated by a nationally recognized rating organization in
either of the two (2) highest rating categories (without regard to modifiers)
for short term securities or in any of the three (3) highest rating categories
(without regard to modifiers) for long term securities; (d) direct obligations
of, or obligations the principal of and interest on which are unconditionally
guaranteed by, any State or Territory of the United States or the District of
Columbia, or any political subdivision of any of the foregoing, which are rated
by a nationally recognized rating organization in either of the two (2) highest
rating categories (without regard to modifiers) for short term securities or in
any of the three (3) highest rating categories (without regard to modifiers) for
long term securities; (e) bonds or other obligations of any agency or
instrumentality of the United States; (f) corporate debt securities which are
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rated by a nationally recognized rating organization in either of the two (2)
highest rating categories (without regard to modifiers) for short term
securities or in any of the three (3) highest rating categories (without regard
to modifiers) for long term securities; (g) repurchase agreements with respect
to any of the foregoing obligations or securities with any banking or financial
institution (which may include the Trustee or any Paying Agent) which has
outstanding securities rated by a nationally recognized rating organization in
either of the two (2) highest rating categories (without regard to modifiers)
for short term securities or in any of the three (3) highest rating categories
(without regard to modifiers) for long term securities; (h) securities issued by
any regulated investment company (including any investment company for which the
Trustee or any Paying Agent is the advisor), as defined in Section 851 of the
Internal Revenue Code of 1986, as amended, or any successor section of such Code
or successor federal statute, provided that the portfolio of such investment
company is limited to obligations or securities of the character and investment
quality contemplated in clauses (a) through (f) above and repurchase agreements
which are fully collateralized by any of such obligations or securities; and (i)
any other obligations or securities which may lawfully be purchased by the
Trustee in its capacity as such.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
encumbrance, easement, lease, reservation, restriction, servitude, charge or
similar right and any other lien of any kind, including, without limitation, any
conditional sale or other title retention agreement, any lease in the nature
thereof, and any defect, irregularity, exception or limitation in record title.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in such Security or in this Indenture, whether at the
Stated Maturity, by declaration of acceleration, upon call for redemption or
otherwise.
"NET TANGIBLE ASSETS" has the meaning specified in Section 707.
"NOTICE OF DEFAULT" means a written notice of the kind specified in
Section 901(c).
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer of the Company and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled or delivered to the Security
Registrar for cancellation;
(b) Securities deemed to have been paid for all purposes of this
Indenture in accordance with Section 801 (whether or not the Company's
indebtedness in respect thereof shall be satisfied and discharged for any other
purpose); and
(c) Securities, the principal, premium, if any, and interest, if any,
which have been fully paid pursuant to the third paragraph of Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
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and the Company that such Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor (unless
the Company, such Affiliate or such obligor owns all Securities Outstanding
under this Indenture, or (except for the purposes of actions to be taken by
Holders of more than one series or more than one Tranche, as the case may
be, voting as a class under Section 1302) all Outstanding Securities of
each such series and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have been pledged in good
faith may be regarded as Outstanding if it is established to the reasonable
satisfaction of the Trustee that the pledgee, and not the Company, or any
such other obligor or Affiliate of either thereof, has the right so to act
with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor; and provided, further, that in no event shall any
Security, which shall have been delivered to evidence or secure, in whole
or in part, the Company's obligations in respect of other indebtedness, be
deemed to be owned by the Company if the principal of such Security is
payable, whether at Stated Maturity or upon mandatory redemption, at the
same time as the principal of such other indebtedness is payable, whether
at Stated Maturity or upon mandatory redemption or acceleration, but only
to the extent of such portion of the principal amount of such Security as
does not exceed the principal amount of such other indebtedness; and
(y) the principal amount of a Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 902; and
(z) the principal amount of any Security which is denominated in a
currency other than Dollars or in a composite currency that shall be deemed
to be Outstanding for such purposes shall be the amount of Dollars which
could have been purchased by the principal amount (or, in the case of a
Discount Security, the Dollar equivalent on the date determined as set
forth below of the amount determined as provided in (y) above) of such
currency or composite currency evidenced by such Security, in each such
case certified to the Trustee in an Officer's Certificate, based (i) on the
average of the mean of the buying and selling spot rates quoted by three
banks which are members of the New York Clearing House Association selected
by the Company in effect at 11:00 A.M. (New York time) in The City of New
York on the fifth Business Day preceding any such determination or (ii) if
on such fifth Business Day it shall not be possible or practicable to
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obtain such quotations from such three banks, on such other quotations or
alternative methods of determination which shall be as consistent as
practicable with the method set forth in (i) above;
provided, further, that in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company, authorized by
the Company to pay the principal of, and premium, if any, or interest, if any,
on any Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time any or all of the specific terms of which Securities, including
without limitation the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents from time to
time subsequent to the initial request for the authentication and delivery of
such Securities by the Trustee, as contemplated in Section 301 and clause (b) of
Section 303.
"PERMITTED SECURED DEBT" has the meaning specified in Section 707.
"PERSON" means any individual, corporation, joint venture, trust or
unincorporated organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series, or Tranche thereof, means the place or places, specified as contemplated
by Section 301, at which, subject to Section 702, principal of and premium, if
any, and interest, if any, on the Securities of such series or Tranche are
payable.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PURCHASE MONEY LIEN" means, with respect to any property being
acquired by the Company, a Lien on such property which
(a) is taken or retained by the transferor of such property to secure
all or part of the purchase price thereof;
(b) is granted to one or more Persons other than the transferor
which, by making advances or incurring an obligation, give value to enable
the grantor of such Lien to acquire rights in or the use of such property;
(c) is held by a trustee or agent for the benefit of one or more
Persons described in clause (a) and/or (b) above, provided that such Lien
may be held, in addition, for the benefit of one or more other Persons
which shall have theretofore given, or may thereafter give, value to or for
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the benefit or account of the grantor of such Lien for one or more other
purposes; or
(d) otherwise constitutes a purchase money mortgage or a purchase
money security interest under applicable law;
and, without limiting the generality of the foregoing, for purposes of
this Indenture, the term Purchase Money Lien shall be deemed to include any Lien
described above whether or not such Lien (x) shall permit the issuance or other
incurrence of additional indebtedness secured by such Lien on such property,
(y) shall permit the subjection to such Lien of additional property and the
issuance or other incurrence of additional indebtedness on the basis thereof
and/or (z) shall have been granted prior to the acquisition of such property,
shall attach to or otherwise cover property other than the property being
acquired and/or shall secure obligations issued prior and/or subsequent to the
issuance of the obligations delivered in connection with such acquisition.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any Vice President, Assistant Vice President, Trust Officer or other officer of
the Trustee who, in the case of each of the foregoing, is assigned by the
Trustee to its corporate trust department responsible for the administration of
this Indenture that is located in the Corporate Trust Office.
"SECURED DEBT" has the meaning specified in Section 707.
"SECURED OBLIGATIONS" has the meaning specified in Section 707.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and delivered
under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY REGISTER" AND "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at
which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by reference
to the Stated Interest Rate on a Security shall be made without regard to the
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effective interest cost to the Company of such Security and without regard to
the Stated Interest Rate on, or the effective cost to the Company of, any other
indebtedness the Company's obligations in respect of which are evidenced or
secured in whole or in part by such Security.
"STATED MATURITY", when used with respect to any Security or any
obligation or any installment of principal thereof or interest thereon, means
the date on which the principal of such obligation or such installment of
principal or interest is stated to be due and payable (without regard to any
provisions for redemption, prepayment, acceleration, purchase or extension).
"SUCCESSOR COMPANY" has the meaning set forth in Section 1201.
"SUPPLEMENTAL INDENTURE" or "INDENTURE SUPPLEMENTAL HERETO" means an
instrument supplementing or amending this Indenture executed and delivered
pursuant to Article Thirteen.
"TRANCHE" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount and/or date of
issuance.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have been appointed
by the Company pursuant to Section 1010 or otherwise have become such with
respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture Act
of 1939 as in effect at such time.
"UNITED STATES" means the United States of America, its territories,
its possessions and other areas subject to its jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that in the opinion of the Authorized Officer
executing such Officer's Certificate, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action (including any covenants
compliance with which constitutes a condition precedent) have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
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(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, and, insofar
as it relates to or is dependent upon matters which are required in this
Indenture to be covered by a certificate or opinion of, or representations by,
an Expert, upon the certificate or opinion of, or representations by, an Expert,
unless, in any case, such officer has actual knowledge that the certificate or
opinion or representations with respect to the matters upon which such Officer's
Certificate may be based as aforesaid are erroneous.
Any Expert's Certificate may be based (without further examination or
investigation), insofar as it relates to or is dependent upon legal matters,
upon an opinion of, or representations by, counsel, and, insofar as it relates
to or is dependent upon factual matters, information with respect to which is in
the possession of the Company and which is not subject to verification by
Experts, upon a certificate or opinion of, or representations by, an officer or
officers of the Company, unless such expert has actual knowledge that the
certificate or opinion or representations with respect to the matters upon which
his or her certificate or opinion may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further examination or
investigation), insofar as it relates to or is dependent upon factual matters,
information with respect to which is in the possession of the Company, upon a
certificate of, or representations by, an officer or officers of the Company,
and, insofar as it relates to or is dependent upon matters required in this
Indenture to be covered by a certificate or opinion of, or representations by,
an Expert, upon the certificate or opinion of, or representations by, an Expert,
unless such counsel has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which his or her opinion may be
based as aforesaid are erroneous. In addition, any Opinion of Counsel may be
based (without further examination or investigation), insofar as it relates to
or is dependent upon matters covered in an Opinion of Counsel rendered by other
counsel, upon such other Opinion of Counsel, unless such counsel has actual
knowledge that the Opinion of Counsel rendered by such other counsel with
respect to the matters upon which his or her Opinion of Counsel may be based as
aforesaid is erroneous. Further, any Opinion of Counsel with respect to the
status of title to or the sufficiency of descriptions of property, and/or the
existence of Liens thereon, and/or the recording or filing of documents, and/or
any similar matters, may be based (without further examination or investigation)
upon (i) title insurance policies or commitments and reports, abstracts of
title, lien search certificates and other similar documents or (ii) certificates
of, or representations by, officers, employees, agents and/or other
representatives of the Company or (iii) any combination of the documents
referred to in (i) and (ii), unless, in any case, such counsel has actual
knowledge that the document or documents with respect to the matters upon which
his opinion may be based as aforesaid are erroneous. If, in order to render any
Opinion of Counsel provided for herein, the signer thereof shall deem it
necessary that additional facts or matters be stated in any Officer's
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Certificate or Expert's Certificate provided for herein, then such certificate
may state all such additional facts or matters as the signer of such Opinion of
Counsel may request.
(b) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Where (i) any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, or (ii) two or more Persons are each required to make, give or
execute any such application, request, consent, certificate, statement, opinion
or other instrument, any such applications, requests, consents, certificates,
statements, opinions or other instruments may, but need not, be consolidated and
form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officer's Certificate, Expert's Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document or
instrument may be substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and, irrespective of the
date or dates of the actual execution and/or delivery thereof, such substitute
document or instrument shall be deemed to have been executed and/or delivered as
of the date or dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or instrument indicates that
action has been taken by or at the request of the Company which could not have
been taken had the original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and effect, except to the
extent that such action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be the
valid obligations of the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article 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 or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 1001)
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 1406.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The ownership, principal amount (except as otherwise contemplated
in clause (y) of the first proviso to the definition of Outstanding) and serial
numbers of Securities held by any Person, and the date of holding the same,
shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be revoked with respect
to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action taken
by such Act of Holders. If the Company shall so determine, new Securities of any
series, or any Tranche thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on the record date
shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of the Outstanding Securities have authorized or agreed
or consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE OR COMPANY.
Except as otherwise provided herein, 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, unless otherwise expressly provided
herein, shall be in writing and delivered personally to an officer or other
responsible employee of the addressee, or transmitted by facsimile transmission
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to such telephone number set forth for such party below or such other address as
the parties hereto shall from time to time designate, or delivered by registered
or certified mail or reputable overnight courier, charges prepaid, to the
applicable address set forth for such party below or to such other address as
either party hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Re: Oncor Electric Delivery Company
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Company, to:
Oncor Electric Delivery Company
Energy Plaza
000 X. Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any communication contemplated herein shall be deemed to have been
sufficiently made, given, furnished and filed if personally delivered, on the
date of delivery, transmitted by facsimile transmission or other direct written
electronic means acceptable to the parties, on the date of transmission, and
transmitted by registered or certified mail or reputable overnight courier, on
the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, if any, prescribed for
the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
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Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any provision of the Trust Indenture
Act, such other provision shall control; and if any provision hereof otherwise
conflicts with the Trust Indenture Act, the Trust Indenture Act shall control
unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and
Trustee shall bind their respective successors and assigns, whether so expressed
or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall be
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the Holders of any Outstanding Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed
in accordance with the law of the State of New York (including without
limitation Section 5-1401 of the New York General Obligations Law or any
successor to such statute), except to the extent that the Trust Indenture Act
shall be applicable and except to the extent that the law of the State of Texas
shall mandatorily govern.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in Securities of any series, or any Tranche thereof, or
in the indenture supplemental hereto, Board Resolution or Officer's Certificate
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which establishes the terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal and premium, if any, need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date, or Stated Maturity, and, if such payment
is made or duly provided for on such Business Day, no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such Business Day.
SECTION 114. INVESTMENT OF CASH HELD BY TRUSTEE.
Any cash held by the Trustee or any Paying Agent under any provision
of this Indenture shall, except as otherwise provided in Article Eight, at the
request of the Company evidenced by Company Order, be invested or reinvested in
Investment Securities designated by the Company (such Company Order to contain a
representation to the effect that the securities designated therein constitute
Investment Securities), and any interest on such Investment Securities shall be
promptly paid over to the Company as received free and clear of any Lien. Such
Investment Securities shall be held subject to the same provisions hereof as the
cash used to purchase the same, but upon a like request of the Company shall be
sold, in whole or in designated part, and the proceeds of such sale shall be
held subject to the same provisions hereof as the cash used to purchase the
Investment Securities so sold. If such sale shall produce a net sum less than
the cost of the Investment Securities so sold, the Company shall pay to the
Trustee or any such Paying Agent, as the case may be, such amount in cash as,
together with the net proceeds from such sale, shall equal the cost of the
Investment Securities so sold, and if such sale shall produce a net sum greater
than the cost of the Investment Securities so sold, the Trustee or any such
Paying Agent, as the case may be, shall promptly pay over to the Company an
amount in cash equal to such excess, free and clear of any Lien. In no event
shall the Trustee be liable for any loss incurred in connection with the sale of
any Investment Security pursuant to this Section.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in substantially the
form or forms thereof established in the indenture supplemental hereto
establishing such series or in a Board Resolution establishing such series, or
in an Officer's Certificate pursuant to such a supplemental indenture or Board
Resolution, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form or forms of Securities of any series are
established in a Board Resolution or in an Officer's Certificate pursuant to a
supplemental indenture or a Board Resolution, such Board Resolution and
Officer's Certificate, if any, shall be delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 301, the
Securities of each series shall be issuable in registered form without coupons.
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The definitive Securities shall be produced in such manner as shall be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: _____________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to the
last paragraph of this Section, prior to the authentication and delivery of
Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution or in an Officer's Certificate
pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other series);
(b) any limit upon the aggregate principal amount of the Securities of
such series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of such series pursuant
to Section 304, 305, 306, 506 or 1306 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
any interest on Securities of such series, or any Tranche thereof, shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(d) the date or dates on which the principal of the Securities of such
series or any Tranche thereof, is payable or any formulary or other method or
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other means by which such date or dates shall be determined, by reference to an
index or other fact or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption, prepayment,
acceleration, purchase or extension); and the right, if any, to extend the
Maturity of the Securities of such series, or any Tranche thereof, and the
duration of any such extension;
(e) the rate or rates at which the Securities of such series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates at
which overdue principal shall bear interest after Maturity if different from the
rate or rates at which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or interest shall
bear interest, if any), or any formulary or other method or other means by which
such rate or rates shall be determined by reference to an index or other fact or
event ascertainable outside of this Indenture or otherwise, the date or dates
from which such interest shall accrue; the Interest Payment Dates and the
Regular Record Dates, if any, for the interest payable on such Securities on any
Interest Payment Date; and the basis of computation of interest, if other than
as provided in Section 310; and the right, if any, to extend the interest
payment periods and the duration of any such extension;
(f) the place or places at which and/or methods (if other than as
provided elsewhere in this Indenture) by which (i) the principal of and premium,
if any, and interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, (ii) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (iii) exchanges of Securities
of such series, or any Tranche thereof, may be effected and (iv) notices and
demands to or upon the Company in respect of the Securities of such series, or
any Tranche thereof, and this Indenture may be served; the Security Registrar
and any Paying Agent or Agents for such series or Tranche; and, if such is the
case, that the principal of such Securities shall be payable without the
presentment or surrender thereof;
(g) the period or periods within which, or the date or dates on which,
the price or prices at which, and the terms and conditions upon which, the
Securities of such series, or any Tranche thereof, may be redeemed, in whole or
in part, at the option of the Company and any restrictions on such redemptions;
including but not limited to a restriction on a partial redemption by the
Company of the Securities of any series, or any Tranche thereof, resulting in
delisting of such Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to redeem or
purchase or repay the Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory redemption provisions or at the
option of a Holder thereof and the period or periods within which, or the date
or dates on which, the price or prices at which and the terms and conditions
upon which, such Securities shall be redeemed or purchased or repaid, in whole
or in part, pursuant to such obligation and applicable exceptions to the
requirements of Section 504 in the case of mandatory redemption or redemption or
repayment at the option of the Holder;
(i) the denominations in which Securities of such series, or any
Tranche thereof, shall be issuable if other than denominations of One Thousand
Dollars ($1,000) and any integral multiple thereof;
(j) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable, at the
election of the Company or a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be payable, the period or periods
within which, and the terms and conditions upon which, such election may be made
and the manner in which the amount of such coin or currency payable is to be
determined;
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(k) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest, if any, on
the Securities of such series, or any Tranche thereof, shall be payable (if
other than Dollars) and the manner in which the equivalent of the principal
amount thereof in Dollars is to be determined for any purpose, including for the
purpose of determining the principal amount deemed to be Outstanding at any
time;
(l) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable, or are
to be payable at the election of the Company or a Holder thereof, in securities
or other property, the type and amount of such securities or other property, or
the formulary or other method or other means by which such amount shall be
determined, and the period or periods within which, and the terms and conditions
upon which, any such election may be made;
(m) if the amount payable in respect of principal of or premium, if
any, or interest, if any, on the Securities of such series, or any Tranche
thereof, may be determined with reference to an index or other fact or event
ascertainable outside this Indenture, the manner in which such amounts shall be
determined to the extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of such series, or any Tranche thereof, which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 902;
(o) any Events of Default, in addition to those specified in
Section 901, or any exceptions to those specified in Section 901, with respect
to the Securities of such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series, or any Tranche thereof,
in addition to those set forth in Article Seven, or any exceptions to those set
forth in Article Seven;
(p) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for shares of
capital stock or other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such series, or any
Tranche thereof, denominated in a currency other than Dollars or in a composite
currency, whether Eligible Obligations include Investment Securities with
respect to Securities of such series, and any provisions for satisfaction and
discharge of Securities of any series, in addition to those set forth in Article
Eight, or any exceptions to those set forth in Article Eight;
(r) if the Securities of such series, or any Tranche thereof, are to
be issued in global form, (i) any limitations on the rights of the Holder or
Holders of such Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in definitive form in
lieu of global form and (iii) any other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche thereof, are to
be issuable as bearer securities, any and all matters incidental thereto which
are not specifically addressed in a supplemental indenture as contemplated by
clause (g) of Section 1301;
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(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the Securities of
such series, or any Tranche thereof, to transfer or exchange such Securities or
to obtain the registration of transfer thereof; and if a service charge will be
made for the registration of transfer or exchange of Securities of such series,
or any Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any Tranche
thereof;
(v) whether the Securities of such series are Benefitted Securities
under Section 707; and
(w) any other terms of the Securities of such series, or any Tranche
thereof, that the Company may elect to specify.
With respect to Securities of a series subject to a Periodic Offering,
the indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company Order as
contemplated in clause (b) of Section 303.
Unless otherwise provided with respect to a series of Securities as
contemplated in Section 301(b), the aggregate principal amount of a series of
Securities may be increased and additional Securities of such series may be
issued up to the maximum aggregate principal amount authorized with respect to
such series as increased.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, the Securities of each
series shall be issuable in denominations of One Thousand Dollars ($1,000) and
any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities or any Tranche thereof, the Securities shall be
executed on behalf of the Company by an Authorized Officer, and may have the
corporate seal of the Company affixed thereto or reproduced thereon attested by
any other Authorized Officer or by the Secretary or an Assistant Secretary of
the Company. The signature of any or all of these officers on the Securities may
be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of execution Authorized Officers or the Secretary or an
Assistant Secretary of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
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The Trustee shall authenticate and deliver Securities of a series for
original issue, at one time or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms and
terms of the Securities of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery of such
Securities and, to the extent that the terms of such Securities shall not have
been established in an indenture supplemental hereto or in a Board Resolution,
or in an Officer's Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Section 301, either (i) establishing such
terms or (ii) in the case of Securities of a series subject to a Periodic
Offering, specifying procedures, acceptable to the Trustee, by which such terms
are to be established (which procedures may provide, to the extent acceptable to
the Trustee, for authentication and delivery pursuant to oral or electronic
instructions from the Company or any agent or agents thereof, which oral
instructions are to be promptly confirmed electronically or in writing), in
either case in accordance with the instrument or instruments establishing the
terms of the Securities of such series delivered pursuant to clause (a) above;
(c) the Securities of such series, each executed on behalf of the
Company by an Authorized Officer of the Company;
(d) an Officer's Certificate (i) which shall comply with the
requirements of Section 102 of this Indenture and (ii) which states that no
Event of Default under this Indenture has occurred or is occurring; and
(e) an Opinion of Counsel which shall comply with the requirements of
Section 102 of this Indenture and that states that:
(i) the form or forms of such Securities have been duly
authorized by the Company and have been established in conformity with
the provisions of this Indenture;
(ii) the terms of such Securities have been duly authorized by
the Company and have been established in conformity with the
provisions of this Indenture; and
(iii) when such Securities shall have been authenticated and
delivered by the Trustee and issued and delivered by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, such Securities will have been duly issued under this
Indenture and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by this Indenture, and
enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of mortgagees' and other creditors' rights, including,
without limitation, bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and
remedies of creditors and mortgagees' generally and general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication and
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delivery of Securities of such series and that in lieu of the opinions described
in clauses (ii) and (iii) above such Opinion of Counsel may, alternatively,
state, respectively,
(x) that, when the terms of such Securities shall have been
established pursuant to a Company Order or Orders, or pursuant to such
procedures as may be specified from time to time by a Company Order or
Orders, all as contemplated by and in accordance with the instrument
or instruments delivered pursuant to clause (a) above, such terms will
have been duly authorized by the Company and will have been
established in conformity with the provisions of this Indenture; and
(y) that, such Securities, when (1) executed by the Company,
(2) authenticated and delivered by the Trustee in accordance with this
Indenture, (3) issued and delivered by the Company and (4) paid for,
all as contemplated by and in accordance with the aforesaid Company
Order or Orders, as the case may be, will have been duly issued under
this Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their terms, subject, as
to enforcement, to laws relating to or affecting generally the
enforcement of mortgagees' and other creditors' rights, including,
without limitation, bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and
remedies of creditors and mortgagees' generally and general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, 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 201 and
301 and this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series, unless and until such opinion or
other documents have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of a series,
pursuant to a Periodic Offering, the Trustee shall be entitled to assume that
the Company's instructions to authenticate and deliver such Securities do not
violate any applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company.
If the forms or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Except as otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security shall
be dated the date of its authentication.
Except as otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security shall
be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee or its agent by manual signature of an authorized officer thereof, and
such certificate upon any Security shall be conclusive evidence, and the only
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evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
to the Company, or any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or any
Tranche thereof, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as any officer executing such Securities may
determine, as evidenced by such officer's execution of such Securities;
provided, however, that temporary Securities need not recite specific
redemption, sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, after the preparation
of definitive Securities of such series or Tranche, the temporary Securities of
such series or Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon surrender of
such temporary Securities at the office or agency of the Company maintained
pursuant to Section 702 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities for such exchange, the Company shall, except
as aforesaid, execute and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series and Tranche of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated pursuant
to Section 702, with respect to the Securities of each series, a register (all
registers kept in accordance with this Section being collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities of
such series, or any Tranche thereof, and the registration of transfer thereof.
The Company shall designate one Person to maintain the Security Register for the
Securities of each series on a consolidated basis, and such Person is referred
to herein, with respect to such series, as the "Security Registrar." Anything
herein to the contrary notwithstanding, the Company may designate one or more of
its offices as an office in which a register with respect to the Securities of
one or more series shall be maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such series. The Security
Register shall be open for inspection by the Trustee and the Company at all
reasonable times.
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Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon surrender
for registration of transfer of any Security of such series or Tranche at the
office or agency of the Company maintained pursuant to Section 702 in a Place of
Payment for such series or Tranche, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any Security of
such series or Tranche may be exchanged at the option of the Holder for one or
more new Securities of the same series and Tranche, of authorized denominations
and of like tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities, which the Holder making the
exchange is entitled to receive.
All Securities delivered upon any registration of transfer or exchange
of Securities shall be valid obligations of the Company, evidencing the same
obligation, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Trustee or the
Security Registrar) be duly endorsed or shall be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301, with
respect to Securities of any series, or any Tranche thereof, no service charge
shall be made for any registration of transfer or exchange of Securities, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to
Section 304, 506 or 1306 not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any series, or
any Tranche thereof, during a period of 15 days immediately preceding the date
notice is to be given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and Tranche, and of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
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has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche, and of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) in
connection therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the related Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a date (a
"Special Record Date") for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same time the
Company 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
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than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company shall promptly cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder of Securities of such
series at the address of such Holder as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of and premium,
if any, and (subject to Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be promptly canceled
by the Security Registrar. The Company may at any time deliver to the Security
Registrar for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so delivered
shall be promptly canceled by the Security Registrar. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in accordance
with the customary practices of the Security Registrar at the time in effect,
and the Security Registrar shall not be required to destroy any such
certificates. The Security Registrar shall promptly deliver a certificate of
disposition to the Trustee and the Company unless, by a Company Order, similarly
delivered, the Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any cancellation of a
Security in accordance with this Section to the Trustee and the Company.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a three hundred sixty (360) day year
consisting of twelve (12) thirty (30) day months, and with respect to any period
less than a full month, on the basis of the actual number of days elapsed during
such period. For example, the interest for a period running from the 15th day of
one month to the 15th day of the next month would be calculated on the basis of
one 30-day month.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of any Security denominated in any currency other than
Dollars or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Security as contemplated by
Section 301, the obligation of the Company to make any payment of the principal
thereof, or the premium or interest thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the Trustee timely holding the full amount of the
Required Currency then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the Required Currency.
The costs and risks of any such exchange, including without limitation the risks
of delay and exchange rate fluctuation, shall be borne by the Company, 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.
SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, to extend interest
payment periods on all the Securities of any series hereunder, if so specified
as contemplated by Section 301 with respect to such Securities and upon such
terms as may be specified as contemplated by Section 301 with respect to such
Securities.
SECTION 313. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" or other similar
numbers (if then generally in use), and, if so, the Company, the Trustee or the
Security Registrar may use "CUSIP" or such other numbers in notices or
redemption as a 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 Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, in which case none of the Company or, as the case may be, the
Trustee or the Security Registrar, or any agent of any of them, shall have any
liability in respect of any CUSIP number used on any such notice, and any such
redemption shall not be affected by any defect in or omission of such numbers.
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ARTICLE FOUR
SECURITIES OF THE FIRST AND SECOND SERIES
There are hereby created two series of Securities (herein sometimes
referred to as "Securities of the First Series" and "Securities of the Second
Series," respectively). The form, designation and terms of the Securities of the
First Series and the Securities of the Second Series shall be established in a
supplemental indenture or a Board Resolution, and/or in an Officer's Certificate
pursuant to a supplemental indenture or a Board Resolution in accordance with
Section 301.
ARTICLE FIVE
REDEMPTION OF SECURITIES
SECTION 501. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of such series or Tranche) in accordance with this Article.
SECTION 502. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company shall,
at least 40 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or condition.
SECTION 503. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche thereof,
are to be redeemed, the particular Securities to be redeemed shall be selected
by the Trustee from the Outstanding Securities of such series or Tranche not
previously called for redemption, by such method as shall be provided for such
particular series or Tranche, or in the absence of any such provision, by such
method of random selection as the Trustee shall deem fair and appropriate and
which may, in any case, provide for the selection for redemption of portions
(equal to any authorized denomination for Securities of such series or Tranche)
of the principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for Securities of
such series or Tranche; provided, however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase all or any principal
amount of the Securities then Outstanding of any series, or any Tranche thereof,
and less than all of such Securities as to which such offer was made shall have
been tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
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The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected to be redeemed in part, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 504. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, notice of redemption shall be given in the manner
provided in Section 106 to the Holders of the Securities to be redeemed not less
than 30 days prior to the Redemption Date.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, all notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (if known),
(c) if less than all the Securities of any series or Tranche are
to be redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption Price, together
with accrued interest, if any, to the Redemption Date, will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, unless it shall have been specified as contemplated by Section
301 with respect to such Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or other fund, if such
is the case,
(g) the CUSIP or ISIN numbers, if any, assigned to such
Securities; provided, however, that such notice may state that no
representation is made as to the correctness of CUSIP or ISIN numbers,
in which case none of the Company, the Trustee or any agent of the
Company or the Trustee shall have any liability in respect of the use
of any CUSIP or ISIN number or numbers on such notices, and the
redemption of such Securities shall not be affected by any defect in
or omission of such numbers, and
(h) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
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notice, such Securities shall be deemed to have been paid in accordance with
Section 801, such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the principal
of and premium, if any, and interest, if any, on such Securities and that if
such money shall not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the Holders thereof any
of such Securities which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Security Registrar in the name and at the expense of the Company. Notice of any
mandatory redemption of Securities shall be given by the Security Registrar in
the name and at the expense of the Company.
SECTION 505. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such surrender shall be a
condition to such payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of which installment
is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close
of business on the related Regular Record Date according to the terms of such
Security and subject to the provisions of Sections 305 and 307.
SECTION 506. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only in
part at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same series and Tranche, of
any authorized denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
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ARTICLE SIX
SINKING FUNDS
SECTION 601. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 602. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
SECTION 602. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Securities
(other than any previously called for redemption) of a series or Tranche in
respect of which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series or Tranche which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of such mandatory sinking fund payment with respect to the Securities of such
series; provided, however, that no Securities shall be applied in satisfaction
of a mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 603. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 40 days prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company shall deliver to
the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to
be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by the payment of cash; and
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(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Securities of
such series or Tranche pursuant to Section 602 and stating the basis
for such credit and that such Securities have not previously been so
credited, and the Company shall also deliver to the Trustee any
Securities to be so delivered.
If the Company shall not deliver such Officer's Certificate and, to
the extent applicable, all such Securities, the next succeeding sinking fund
payment for such series or Tranche shall be made entirely in cash in the amount
of the mandatory sinking fund payment. Not less than 30 days before each such
sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
503 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 504. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 505 and 506.
ARTICLE SEVEN
REPRESENTATIONS AND COVENANTS
SECTION 701. PAYMENT OF SECURITIES.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with the terms
of such Securities and this Indenture.
SECTION 702. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the Securities
of each series, or any Tranche thereof, an office or agency where payment of
such Securities shall be made, where the registration of transfer or exchange of
such Securities may be effected and where notices and demands to or upon the
Company in respect of such Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency and prompt notice to the
Holders of any such change in the manner specified in Section 106. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, then payment of such
Securities shall be made, registration of transfer or exchange thereof may be
effected and notices and demands in respect of such Securities and this
Indenture may be served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent for all such purposes in any
such event.
The Company may also from time to time designate one or more other
offices or agencies with respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that, unless otherwise
specified as contemplated by Section 301 with respect to the Securities of such
series or Tranche, no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency for such purposes
in each Place of Payment for such Securities in accordance with the requirements
set forth above. The Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified in Section 106, of any
such designation or rescission and of any change in the location of any such
other office or agency.
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Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at an office of the Company or an
Affiliate of the Company, in which event the Company or such Affiliate shall
perform all functions to be performed at such office or agency.
SECTION 703. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest, if
any, on any of such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company shall promptly notify the
Trustee of any failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or interest, if any, on
such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before each
due date of the principal of and premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sums to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Company or the Trustee, to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if any, on such Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company (or any
other obligor upon such Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such Securities; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons entitled to such
sums.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent and, if so
stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and premium, if
any, or interest, if any, on any Security and remaining unclaimed for two years
after such principal and premium, if any, or interest, if any, has become due
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and payable shall to the extent permitted by law be paid to the Company on
Company Request, or, if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such Security shall,
as an unsecured general creditor and not as the Holder of an Outstanding
Security, look only to the Company for payment of the amount so due and payable
and remaining unpaid unless the applicable law provides otherwise, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such payment to the Company, may at the expense of the Company cause
to be mailed, on one occasion only, notice to such Holder that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than thirty (30) days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 704. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Twelve, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its legal existence as a corporation.
SECTION 705. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than June 1 in each year, commencing June 1, 2003, the
Company shall deliver to the Trustee an Officer's Certificate which need not
comply with the requirements of Section 102, executed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, as to such officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice under this
Indenture, and making any other statements as may be required by the Trust
Indenture Act.
SECTION 706. 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 702 or any additional
covenant or restriction specified with respect to the Securities of any series,
or any Tranche thereof, as contemplated by Section 301, if before the time for
such compliance the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches with respect to which
compliance with Section 702 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 704, 705 or Article Twelve if before the
time for such compliance the Holders of a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition; but, in 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.
SECTION 707. LIMITATION ON SECURED DEBT.
(a) Except as otherwise specified as contemplated by Section 301 for
Securities of any series, so long as any Securities of any series are
Outstanding, the Company shall not issue any Secured Debt (other than Permitted
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Secured Debt), without the consent of the Holders of a majority in principal
amount of all the Outstanding Securities of all series and Tranches with respect
to which this covenant is specified as contemplated by Section 301 (the
"Benefitted Securities"), considered as one class, except as expressly
contemplated in subsections (b) and (c) of this Section.
(b) The provisions of subsection (a) shall not prohibit the creation
or existence of any Secured Debt if either:
(i) the Company shall make effective provision whereby the
Benefitted Securities shall be secured at least equally and ratably
with such Secured Debt; or
(ii) the Company shall deliver to the Trustee bonds, notes or
other evidences of indebtedness secured by the Lien which secures such
Secured Debt (hereinafter called "Secured Obligations") (A) in an
aggregate principal amount equal to the aggregate principal amount of
each series then Outstanding, (B) maturing (or being subject to
mandatory redemption) on the Stated Maturities of such series and (C)
containing, in addition to any mandatory redemption provisions
applicable to all Secured Obligations outstanding under such Lien and
any mandatory redemption provisions contained therein pursuant to
clause (B) above, mandatory redemption provisions correlative to the
provisions, if any, for the mandatory redemption (pursuant to a
sinking fund or otherwise) of the Securities of such series or for the
redemption thereof at the option of the Holder, as well as a provision
for mandatory redemption upon an acceleration of the maturity of all
Outstanding Securities of such series following an Event of Default
(such mandatory redemption to be rescinded upon the rescission of such
acceleration); it being expressly understood that such Secured
Obligations (x) may, but need not, bear interest, (y) may, but need
not, contain provisions for the redemption thereof at the option of
the issuer, any such redemption to be made at a redemption price or
prices not less than the principal amount thereof and (z) shall be
held by the Trustee for the benefit of the Holders of all Securities
of such series from time to time Outstanding subject to such terms and
conditions relating to surrender to the Company, transfer
restrictions, voting, application of payments of principal and
interest and other matters as shall be set forth in an indenture
supplemental hereto specifically providing for the delivery to the
Trustee of such Secured Obligations.
(c) If the Company shall elect either of the alternatives described in
subsection (b), the Company shall deliver to the Trustee:
(i) an indenture supplemental to this Indenture (A) together with
evidence of appropriate inter-creditor arrangements, whereby this
Indenture shall be secured by the Lien referred to in subsection (b)
equally and ratably with all other indebtedness secured by such Lien
or (B) providing for the delivery to the Trustee of Secured
Obligations;
(ii) an Officer's Certificate (A) stating that, to the knowledge
of the signer, (x) no Event of Default has occurred and is continuing
and (y) no event has occurred and is continuing which entitles the
secured party under such Lien to accelerate the maturity of the
indebtedness outstanding thereunder and (B) stating the aggregate
principal amount of indebtedness issuable, and then proposed to be
issued, under and secured by such Lien;
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(iii) an Opinion of Counsel (A) if the Outstanding Securities
under this Indenture are to be secured by such Lien, to the effect
that all Securities then Outstanding are entitled to the benefit of
such Lien equally and ratably with all other indebtedness outstanding
secured by such Lien or (B) if Secured Obligations are to be delivered
to the Trustee, to the effect that such Secured Obligations have been
duly issued under such Lien and constitute valid obligations, entitled
to the benefit of such Lien equally and ratably with all other
indebtedness then outstanding secured by such Lien.
(d) For purposes of this Section, except as otherwise expressly
provided or unless the context otherwise requires:
(i) "DEBT", with respect to any Person, means (A) indebtedness of
such Person for borrowed money evidenced by a bond, debenture, note or
other written instrument or agreement by which such Person is
obligated to repay such borrowed money, (B) any guaranty by such
Person of any such indebtedness of another Person, and (C) any
Capitalized Lease Liabilities of the Company. "Debt" does not include,
among other things, (w) indebtedness of such person under any
installment sale or conditional sale agreement or any other agreement
relating to indebtedness for the deferred purchase price of property
or services, (x) any trade obligation (including obligations under
power or other commodity purchase agreements and any xxxxxx or
derivatives associated therewith), or other obligations of such Person
in the ordinary course of business, (y) obligations of such Person
under any lease agreement that are not Capitalized Lease Liabilities,
or (z) any Liens securing indebtedness, neither assumed nor guaranteed
by the Company nor on which it customarily pays interest, existing
upon real estate or rights in or relating to real estate acquired by
the Company for substation, transmission line, transportation line,
distribution line or right of way purposes.
(ii) "PERMITTED SECURED DEBT" means, as of any particular time,
any of the following:
(A) Class A Bonds and securities issued under the 2002
Indenture prior to the Release Date as defined in the 2002
Indenture;
(B) Secured Debt which matures less than one year from the
date of the issuance or incurrence thereof and is not extendible
at the option of the issuer; and any refundings, refinancings
and/or replacements of any such Secured Debt by or with similar
Secured Debt which matures less than one year from the date of
such refunding, refinancing and/or replacement and is not
extendible at the option of the issuer;
(C) Secured Debt secured by Purchase Money Liens or any
other Liens existing or placed upon property at the time of, or
within one hundred eighty (180) days after, the acquisition
thereof by the Company, and any refundings, refinancings and/or
replacements of any such Secured Debt; provided, however, that no
such Purchase Money Lien or other Lien shall extend to or cover
any property of the Company other than (x) the property so
acquired and improvements, extensions and additions to such
property and renewals, replacements and substitutions of or for
such property or any part or parts thereof and (y) with respect
to Purchase Money Liens, other property subsequently acquired by
the Company;
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(D) Secured Debt relating to governmental obligations the
interest on which is not included in gross income for purpose of
federal income taxation pursuant to Section 103 of the Internal
Revenue Code of 1986, as amended (or any successor provision of
law), for the purpose of financing or refinancing, in whole or in
part, costs of acquisition or construction of property to be used
by the Company, to the extent that the Lien which secures such
Secured Debt is required either by applicable law or by the
issuer of such governmental obligations or is otherwise necessary
in order to establish or maintain such exclusion from gross
income; and any refundings, refinancings and/or replacements of
any such Secured Debt by or with similar Secured Debt;
(E) Secured Debt (x) which is related to the construction or
acquisition of property not previously owned by the Company or
(y) which is related to the financing of a project involving the
development or expansion of property of the Company and (z) in
either case, the obligee in respect of which has no recourse to
the Company or any property of the Company other than the
property constructed or acquired with the proceeds of such
transaction or the project financed with the proceeds of such
transaction (or the proceeds of such property or such project);
and any refundings, refinancings and/or replacements of any
Secured Debt by or with Secured Debt described in clause (z)
above; and
(F) in addition to the Permitted Secured Debt described in
clauses (A) through (E) above, Secured Debt not otherwise so
permitted in this Section 707 in an aggregate principal amount
not exceeding the greater of 10% of the Company's Net Tangible
Assets or 10% of Capitalization.
(iii) "CAPITALIZATION" means the total of all the following items
appearing on, or included in, the Company's unconsolidated balance
sheet: (A) liabilities for indebtedness maturing more than 12 months
from the date of determination, and (B) common stock, common stock
expense, accumulated other comprehensive income or loss, preferred
stock, preference stock, premium on common stock and retained earnings
(however the foregoing may be designated), less, to the extent not
otherwise deducted, the cost of shares of the Company's capital stock
held in the Company's treasury, if any. Capitalization shall be
determined in accordance with generally accepted accounting principles
and practices applicable to the type of business in which the Company
is engaged, and may be determined as of the date not more than 60 days
prior to the happening of the event for which the determination is
being made.
(iv) "CAPITALIZED LEASE LIABILITIES" means the amount, if any,
shown as liabilities on the Company's unconsolidated balance sheet for
capitalized leases of electric transmission and distribution property
not owned by the Company, which amount shall be determined in
accordance with generally accepted accounting principles and practices
applicable to the type of business in which the Company is engaged.
(v) "NET TANGIBLE ASSETS" means the amount shown as total assets
on the Company's unconsolidated balance sheet, less (A) intangible
assets including, but without limitation, such items as goodwill,
trademarks, trade names, patents, unamortized debt discount and
expense and other regulatory assets carried as assets on the Company's
unconsolidated balance sheet, and (B) appropriate adjustments, if any,
on account of minority interests. Net Tangible Assets shall be
determined in accordance with generally accepted accounting principles
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and practices applicable to the type of business in which the Company
is engaged.
(vi) "SECURED DEBT" means Debt created, issued, incurred or
assumed by the Company which is secured by a Lien upon any property
(other than Excepted Property) of the Company, real, personal or
mixed, of whatever kind or nature and wherever located. For purposes
of this Section, any Capitalized Lease Liabilities of the Company will
be deemed to be Debt secured by a Lien on the Company's property.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE
SECTION 801. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal amount
thereof, shall be deemed to have been paid and no longer Outstanding for all
purposes of this Indenture, and the entire indebtedness of the Company in
respect thereof shall be deemed to have been satisfied and discharged, if there
shall have been irrevocably deposited with the Trustee or any Paying Agent
(other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, the principal of and the
interest on which when due, without any regard to reinvestment
thereof, will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) and (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on or prior to
Maturity; provided, however, that in the case of the provision for payment or
redemption of less than all the Securities of any series or Tranche, such
Securities or portions thereof shall have been selected by the Trustee as
provided herein and, in the case of a redemption, the notice requisite to the
validity of such redemption shall have been given or irrevocable authority shall
have been given by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the Maturity of
such Securities, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 803;
(y) if Eligible Obligations shall have been deposited, an Opinion of
Counsel to the effect that such obligations constitute Eligible Obligations
and do not contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, and a report of an independent
public accountant of nationally recognized standing, selected by the
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Company, to the effect that the other requirements set forth in clause (b)
and (c) above have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity of
such Securities, an Officer's Certificate stating the Company's intention
that, upon delivery of such Officer's Certificate, its indebtedness in
respect of such Securities or portions thereof will have been satisfied and
discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon receipt of a Company Request,
acknowledge in writing that the Security or Securities or portions thereof with
respect to which such deposit was made are deemed to have been paid for all
purposes of this Indenture and that the entire indebtedness of the Company in
respect thereof has been satisfied and discharged as contemplated in this
Section. In the event that all of the conditions set forth in the preceding
paragraph shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate specified in
clause (z) shall not have been delivered, such Securities or portions thereof
shall nevertheless be deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits provided by this Indenture or
of any of the covenants of the Company under Article Seven (except the covenants
contained in Sections 702 and 703) or any other covenants made in respect of
such Securities or portions thereof as contemplated by Section 301 or Section
1301(b), but the indebtedness of the Company in respect of such Securities or
portions thereof shall not be deemed to have been satisfied and discharged prior
to Maturity for any other purpose and the Holders of such Securities or portions
thereof shall continue to be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company Request, the Trustee shall
acknowledge in writing that such Securities or portions thereof are deemed to
have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the Securities of
any series, or any Tranche thereof, is to be provided for in the manner and with
the effect provided in this Section, the Trustee shall select such Securities,
or portions of principal amount thereof, in the manner specified by Section 503
for selection for redemption of less than all the Securities of a series or
Tranche.
In the event that Securities which shall be deemed to have been paid
for purposes of this Indenture, and, if such is the case, in respect of which
the Company's indebtedness shall have been satisfied and discharged, all as
provided in this Section, do not mature and are not to be redeemed within the
sixty (60) day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a notice of redemption with
respect to such Securities, to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid
for purposes of this Indenture, as aforesaid, the obligations of the Company and
the Trustee in respect of such Securities under Sections 304, 305, 306, 504,
702, 703, 1007 and 1015 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any Paying
Agent with which Eligible Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge imposed on or assessed
against such Eligible Obligations or the principal or interest received in
respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
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Anything herein to the contrary notwithstanding, (a) if, at any time
after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied and discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, (i) shall be required to return the money or
Eligible Obligations, or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable Federal or State
bankruptcy, insolvency or other similar law, or (ii) is unable to apply any
money in accordance with this Article with respect to any Securities by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, such Security shall
thereupon be deemed retroactively not to have been paid and any satisfaction and
discharge of the Company's indebtedness in respect thereof shall retroactively
be deemed not to have been effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the Company's indebtedness
in respect of any Security shall be subject to the provisions of the last
paragraph of Section 703.
SECTION 802. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute such instruments as the Company shall
reasonably request to evidence and acknowledge the satisfaction and discharge of
this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of
Section 801, any Security, previously deemed to have been paid for purposes of
this Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 504, 702, 703, 1007 and 1015 and this Article shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 1007, any and all money, securities and
other property then held by the Trustee for the benefit of the Holders of the
Securities (other than money and Eligible Obligations held by the Trustee
pursuant to Section 803) and shall execute and deliver to the Company such
instruments as, in the judgment of the Company, shall be necessary, desirable or
appropriate to effect or evidence the satisfaction and discharge of this
Indenture.
SECTION 803. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant to
Section 801, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of and premium, if any, and
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interest, if any, on the Securities or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to the provisions
of Section 703; provided, however, that so long as there shall not have occurred
and be continuing an Event of Default, any cash received from such principal or
interest payments on such Eligible Obligations, if not then needed for such
purpose, shall, to the extent practicable and upon Company Request and delivery
to the Trustee of the documents referred to in clause (y) in the first paragraph
of Section 801, be invested in Eligible Obligations of the type described in
clause (b) in the first paragraph of Section 801 maturing at such times and in
such amounts as shall be sufficient, together with any other moneys and the
proceeds of any other Eligible Obligations then held by the Trustee, to pay when
due the principal of and premium, if any, and interest, if any, due and to
become due on such Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid over to the
Company as received, free and clear of any trust, lien or pledge under this
Indenture (except the lien provided by Section 1007); and provided, further,
that, so long as there shall not have occurred and be continuing an Event of
Default, any moneys held in accordance with this Section on the Maturity of all
such Securities in excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such Securities shall be paid
over to the Company free and clear of any trust, lien or pledge under this
Indenture (except the lien provided by Section 1007); and provided, further,
that if an Event of Default shall have occurred and be continuing, moneys to be
paid over to the Company pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE NINE
EVENTS OF DEFAULT; REMEDIES
SECTION 901. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities,
means any one of the following events:
(a) failure to pay any interest on any Security when it becomes
due and payable and continuance of such default for a period of 30
days; provided, however, that no such default shall constitute an
"Event of Default" if the Company has made a valid extension of the
interest payment period with respect to the Securities of such series,
of which such Security is a part, if so provided as contemplated by
Section 301; or
(b) failure to pay the principal of or premium, if any, on any
Security when it becomes due and payable; provided, however, that no
such default shall constitute an "Event of Default" if the Company has
made a valid extension of the Maturity of the Securities of the
series, of which such Security is a part, if so provided as
contemplated by Section 301; or
(c) failure to perform or breach of, any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in
this Section specifically addressed) and continuance of such default
or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 33% in aggregate
principal amount of the Outstanding Securities, 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
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the Trustee, or the Trustee and the Holders of a principal amount of
Securities not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall agree in
writing to an extension of such period prior to its expiration;
provided, however, that the Trustee, or the Trustee and the Holders of
such principal amount of Securities, as the case may be, shall be
deemed to have agreed to an extension of such period if corrective
action is initiated by the Company within such period and is being
diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt or 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 bankruptcy, insolvency or similar law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official for the Company or for any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and any such decree or order for relief or any such other
decree or order shall have remained unstayed and in effect for a
period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company to the entry of a decree or order for relief in
respect of the Company in a case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against the Company, or the filing by the Company
of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State bankruptcy, insolvency,
reorganization or similar law, or the consent by the Company to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its
property, or the making by the Company of an assignment for the
benefit of creditors, or the admission by the Company in writing of
its inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors.
SECTION 902. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be continuing, then in
every such case the Trustee or the Holders of not less than 33% in principal
amount of the Outstanding Securities may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon receipt by the Company of notice of such declaration such
principal amount (or specified amount) together with premium, if any, and
accrued and unpaid interest shall become immediately due and payable.
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At any time after such a declaration of acceleration of the maturity
of the Securities then Outstanding shall have been made and before a judgment or
decree for payment of the money due shall have been obtained by the Trustee as
provided in this Article, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed to have been
cured, and such declaration and its consequences shall, without further act, be
deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest, if any, on all Securities then
Outstanding;
(ii) the principal of and premium, if any, on any Securities then
Outstanding which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities;
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities; and
(iv) all amounts due to the Trustee under Section 1007;
and
(b) all Events of Default, other than the non-payment of the principal
of Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as provided in
Section 913.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 903. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section 901
shall have occurred, the Company shall, upon demand of the Trustee, pay to it,
for the benefit of the Holders of the Securities with respect to which such
Event of Default shall have occurred, the whole amount then due and payable on
such Securities for principal and premium, if any, and interest, if any, and, to
the extent permitted by law, interest on premium, if any, and on any overdue
principal and interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover any amounts due to the Trustee under Section 1007.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default shall have occurred and be continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
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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 904. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee under Section
1007) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 1007.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 905. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee, without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
SECTION 906. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium, if
any, or interest, if any, upon presentation of the Securities in respect of
which or for the benefit of which such money shall have been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under
Section 1007;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any,
and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 907. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of a majority in aggregate principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the Outstanding
Securities;
it being understood and intended that no one or more of the Holders of any
Securities shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all Holders.
SECTION 908. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to
Section 307) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of 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.
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SECTION 909. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 910. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 911. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 912. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing, the
Holders of a majority in principal amount of the Outstanding Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to such Securities; provided, however,
that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's
sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 913. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Outstanding Security, or
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(b) in respect of a covenant or provision hereof which under
Section 1302 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of any series or Tranche affected.
Upon any such waiver, such default shall cease to exist, and any and
all Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 914. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant 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 Securities then Outstanding, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or premium,
if any, or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or in the case of redemption, on or after
the Redemption Date).
SECTION 915. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and 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 TEN
THE TRUSTEE
SECTION 1001. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee in the Trust
Indenture Act and no implied covenants or obligations shall be read into this
Indenture against the Trustee. For purposes of Sections 315(a) and 315(c) of the
Trust Indenture Act, the term "default" is hereby defined as an Event of Default
which has occurred and is continuing.
(b) 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.
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(c) Notwithstanding anything contained in this Indenture to the
contrary, the duties and responsibilities of the Trustee under this Indenture
shall be subject to the protections, exculpations and limitations on liability
afforded to an indenture trustee under the provisions of the Trust Indenture
Act. For the purposes of Sections 315(b) and 315(d)(2) of the Trust Indenture
Act, the term "responsible officer" is hereby defined as a Responsible Officer
and the chairman or vice chairman of the board of directors, the chairman or
vice chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller and any assistant
controller of the Trustee, or any other officer of the Trustee customarily
performing functions similar to those performed by a Responsible Officer or any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
(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 1002. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder known to the
Trustee in the manner and to the extent required to do so by the Trust Indenture
Act, unless such default shall have been cured or waived; provided, however,
that in the case of any default of the character specified in Section 901(c), no
such notice to Holders shall be given until at least 60 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.
SECTION 1003. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 1001 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any Holder pursuant to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal business hours, the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be charged with knowledge of any default (as
defined in Section 1002) or Event of Default unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge of such default or Event of
Default or (2) written notice of such default or Event of Default shall have
been given to the Trustee by the Company or any other obligor on such
Securities, or by any Holder of such Securities;
(i) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder; and
(j) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
SECTION 1004. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof or any money
paid to the Company hereunder.
SECTION 1005. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 1008 and 1013, may otherwise deal with the Company with the same rights
it would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
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SECTION 1006. 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 1007. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except to the extent that any such expense, disbursement or
advance may be attributable to the Trustee's negligence, willful
misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from and
against, any loss, liability or expense reasonably incurred by it
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder or the performance of its duties
hereunder, including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder except to the
extent any such loss, liability or expense may be attributable to its
negligence, willful misconduct or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, other than
property and funds held in trust under Section 803 (except moneys payable to the
Company as provided in Section 803).
In addition and without prejudice to the rights provided to the
Trustee under any of the provisions of this Indenture, when the Trustee incurs
expenses or renders services in connection with an Event of Default specified in
Section 901(d) or Section 901(e), 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 and State
bankruptcy, insolvency or other similar law.
The Company's obligations under this Section 1007 and the Lien
referred to in this Section 1007 shall survive the resignation or removal of the
Trustee, the discharge of the Company's obligations under Article Eight of this
Indenture and/or the termination of this Indenture.
"TRUSTEE" for purposes of this Section 1007 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.
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SECTION 1008. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest within
the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of the Securities of
any other series issued under this Indenture. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 1009. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by Federal, State or District of Columbia authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person organized
and doing business under the laws of a foreign government, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section and the Trust Indenture Act, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 1010. 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 1011.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 1011 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation or the receipt of a notice
of removal pursuant to subsection (c) below, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Trustee and the Company.
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(d) If at any time:
(i) the Trustee shall fail to comply with Section 1008 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 1009 or
Section 310(a) of the Trust Indenture Act and shall fail to resign
after written request therefor by the Company or by any such Holder,
or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by Board Resolutions may remove the
Trustee with respect to all Securities or (y) subject to Section 914, any Holder
who has been a bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
(other than as contemplated by clause (y) in subsection (d) of this Section),
the Company, by Board Resolutions, shall promptly appoint a successor Trustee or
Trustees and shall comply with the applicable requirements of Section 1011. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
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 1011, become the successor Trustee
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee shall have been so appointed by the Company or the Holders
and accepted appointment in the manner required by Section 1011, any Holder who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) So long as no event which is, or after notice or lapse of time, or
both, would become, an Event of Default shall have occurred and be continuing,
and except with respect to a Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities pursuant to
subsection (e) of this Section, if the Company shall have delivered to the
Trustee (i) Board Resolutions appointing a successor Trustee, effective as of a
date specified therein, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such successor Trustee in accordance
with Section 1011, 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 1011, all as of such date, and all other provisions of this Section and
Section 1011 shall be applicable to such resignation, appointment and acceptance
except to the extent inconsistent with this subsection (f).
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(g) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders of
Securities in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 1011. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee, every
such successor Trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of all sums owed to
it, execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its Lien provided for
in Section 1007.
(b) Upon request of any such successor Trustee, the Company shall
execute any instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
subsection (a) of this Section.
(c) 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 1012. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 1013. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act, (a) the term "cash
transaction" shall have the meaning provided in Rule 11b-4 under the Trust
Indenture Act, and (b) the term "self-liquidating paper" shall have the meaning
provided in Rule 11b-6 under the Trust Indenture Act.
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SECTION 1014. CO-TRUSTEE AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee shall
have power to appoint, and, upon the written request of the Trustee or of the
Holders of at least 33% in principal amount of the Securities then Outstanding,
the Company shall for such purpose join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper to appoint, one
or more Persons approved by the Trustee either to act as co-trustee, jointly
with the Trustee, or to act as separate trustee, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such Person
or Persons, in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Company does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default shall have
occurred and be continuing, the Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee to more fully confirm to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Company.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred
or imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or
separate trustee;
(c) the Trustee at any time, by an instrument in writing executed
by it, with the concurrence of the Company, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this
Section, and, if an Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the Trustee,
the Company shall join with the Trustee in the execution and delivery
of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder, and the Trustee shall not be
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personally liable by reason of any act or omission of any such
co-trustee or separate trustee; and
(e) any Act of Holders delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
SECTION 1015. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State or territory thereof
or the District of Columbia or the Commonwealth of Puerto Rico, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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The provisions of Sections 308, 1004 and 1005 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By______________________
As Authenticating Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
ARTICLE ELEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1101. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December 1 in each year,
commencing December 1, 2002 and at such other times as the Trustee may request
in writing, the Company shall furnish or cause to be furnished to the Trustee
information as to the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it in any other
capacity and afford to the Holders access to information so preserved by it, all
to such extent, if any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1102. REPORTS BY TRUSTEE AND COMPANY.
Not later than November 1 in each year, commencing with the year 2002,
the Trustee shall transmit to the Holders, the Commission and each securities
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exchange upon which any Securities are listed, a report, dated as of the next
preceding September 15, with respect to any events and other matters described
in Section 313(a) of the Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall transmit to the Holders,
the Commission and each securities exchange upon which any Securities are
listed, and the Company shall file with the Trustee (within 30 days after filing
with the Commission in the case of reports which pursuant to the Trust Indenture
Act must be filed with the Commission and furnished to the Trustee) and transmit
to the Holders, such other information, reports and other documents, if any, at
such times and in such manner, as shall be required by the Trust Indenture Act.
The Company shall notify the Trustee of the listing of any Securities on any
securities exchange.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only, and the Trustee's receipt of such shall not
constitute notice or 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 Officer's Certificates).
The Company shall file with the Trustee (within thirty (30) days after
filing with the Commission in the case of reports that pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to the Trustee)
and transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be required by the
Trust Indenture Act.
ARTICLE TWELVE
CONSOLIDATION, MERGER, CONVEYANCE, OR OTHER TRANSFER
SECTION 1201. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer, or lease, as or substantially as
an entirety the Company's Electric Utility Property to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or other transfer,
or which leases, as or substantially as an entirety such Electric Utility
Property shall be a corporation organized and existing under the laws of the
United States, any State or Territory thereof or the District of Columbia (such
corporation being hereinafter sometimes called the "SUCCESSOR COMPANY") and
shall execute and deliver to the Trustee an indenture supplemental hereto, in
form reasonably satisfactory to the Trustee, which in the case of a
consolidation, merger, conveyance or other transfer, or in the case of a lease
if the term thereof extends beyond the last Stated Maturity of the Securities
then Outstanding, contains an express assumption by the Successor Company of the
due and punctual payment of the principal of and premium, if any, and interest,
if any, on all the Securities then Outstanding and the performance and
observance of every covenant and condition of this Indenture to be performed or
observed by the Company;
(b) in the case of a lease, such lease shall be made expressly subject
to termination at any time during the continuance of an Event of Default, by (i)
the Company or the Trustee and (ii) the purchaser of the property so leased at
any sale thereof hereunder, whether such sale be made under the power of sale
hereby conferred or pursuant to judicial proceedings;
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(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each of which shall state that such
consolidation, merger, conveyance or other transfer or lease, and such
supplemental indenture, comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with; and
(d) immediately after giving effect to such transaction (and treating
any Debt that becomes an obligation of the Successor Company as a result of such
transaction as having been incurred by the Successor Company at the time of such
transaction), no Default or Event of Default shall have occurred and be
continuing.
SECTION 1202. SUCCESSOR COMPANY SUBSTITUTED.
Upon any consolidation or merger or any conveyance or other transfer
of, as or substantially as an entirety the Company's Electric Utility Property
in accordance with Section 1201, the Successor Company shall succeed to, and be
substituted for, and may exercise every power and right of, the Company under
this Indenture with the same effect as if such Successor Company had been named
as the "Company" herein.
SECTION 1203. RELEASE OF COMPANY UPON CONVEYANCE OR OTHER TRANSFER.
In the case of a conveyance or other transfer to any Person or Persons
as contemplated in Section 1201, upon the satisfaction of all the conditions
specified in Section 1201 the Company (such term being used in this Section
without giving effect to such transaction) shall be released and discharged from
all obligations and covenants under this Indenture and on and under all
Securities then Outstanding (unless the Company shall have delivered to the
Trustee an instrument in which it shall waive such release and discharge) and,
upon request by the Company, the Trustee shall acknowledge in writing that the
Company has been so released and discharged.
SECTION 1204. MERGER INTO COMPANY.
Nothing in this Indenture shall be deemed to prevent or restrict any
consolidation or merger after the consummation of which the Company would be the
surviving or resulting corporation or any conveyance or other transfer, or
lease, of any part of the Company's Electric Utility Property which does not
constitute the entirety or substantially the entirety of its Electric Utility
Property.
SECTION 1205. TRANSFER OF LESS THAN SUBSTANTIALLY ALL.
A conveyance, transfer or lease by the Company of Electric Utility
Property shall not be deemed to constitute the conveyance, transfer or lease as
or substantially as an entirety of its Electric Utility Property for purposes of
this Indenture if the Fair Value of the Electric Utility Property retained by
the Company exceeds 143% of the aggregate principal amount of all Outstanding
Securities and any other outstanding debt securities of the Company that rank
equally with, or senior to the Securities with respect to such Electric Utility
Property, other than any Class A Bonds held by the trustee under the 2002
Indenture. Such Fair Value shall be established by the delivery to the Trustee
of an Independent Expert's Certificate stating the Independent Expert's opinion
of such Fair Value as of a date not more than 90 days before or after such
conveyance, transfer or lease. This Article is not intended to limit the
Company's conveyances, transfers or leases of less than the entirety or
substantially the entirety of its Electric Utility Property.
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ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 1301. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities all as provided in Article
Twelve; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of the Holders of all or any series of
Securities, or any Tranche, thereof or to surrender any right or power
herein conferred upon the Company (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series); or
(c) to add any additional Events of Default with respect to all
or any series of Securities Outstanding hereunder (and if such
additional Events of Default are to be for the benefit of less than
all series of Securities, stating that such additional Events of
Default are expressly being included solely for the benefit of such
series); or
(d) to change or eliminate any provision of this Indenture or to
add any new provision to this Indenture; provided, however, that if
such change, elimination or addition shall adversely affect the
interests of the Holders of Securities of any series or Tranche
Outstanding on the date of such supplemental indenture in any material
respect, such change, elimination or addition shall become effective
with respect to such series or Tranche only pursuant to the provisions
of Section 1302 hereof or when no Security of such series or Tranche
remains Outstanding; or
(e) to provide additional collateral security for the Securities
of any series; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof, and for
any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities of one or more series; or
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(i) to provide for the procedures required to permit the Company
to utilize, at its option, a non-certificated system of registration
for all, or any series or Tranche of, the Securities; or
(j) to change any place or places where (i) the principal of and
premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (ii) all or any
series of Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (iii) all or any series of Securities, or
any Tranche thereof, may be surrendered for exchange and (iv) notices
and demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served;
or
(k) to amend and restate this Indenture, as originally executed
and delivered and as it may have been subsequently amended, in its
entirety, but with such additions, deletions and other changes as
shall not adversely affect the interests of the Holders of the
Securities in any material respect; or
(l) 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 materially adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the Execution Date or at any time thereafter shall
be amended and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such changes or incorporate
such provisions by reference or otherwise, this Indenture shall be deemed
to have been amended so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee may, without the consent of
any Holders, enter into an indenture supplemental hereto to evidence such
amendment hereof; or
(y) if any such amendment shall permit one or more changes to, or the
elimination of, any provisions hereof which, at the Execution Date or at
any time thereafter, are required by the Trust Indenture Act to be
contained herein or are contained herein to reflect any provision of the
Trust Indenture Act as in effect at such date, this Indenture shall be
deemed to have been amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any Holders, enter into
an indenture supplemental hereto to effect such changes or elimination or
evidence such amendment.
SECTION 1302. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1301, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series then Outstanding under this Indenture, considered as
one class, by Act of said Holders delivered to the Company and the Trustee, the
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Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture; provided, however, that if there shall be Securities of more
than one series Outstanding hereunder and if a proposed supplemental indenture
shall directly affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be required; and
provided, further, that if the Securities of any series shall have been issued
in more than one Tranche and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one or more, but less
than all, of such Tranches, then the consent only of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security of each series or Tranche so directly
affected,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security (other than
pursuant to the terms thereof), or reduce the principal amount thereof
or the rate of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such rate or
reduce any premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 902, or change the coin or currency (or other
property), in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section
1404 for quorum or voting, or
(c) modify any of the provisions of this Section, Section 706 or
Section 913 with respect to the Securities of any series, or any
Tranche thereof, except to increase the percentages in principal
amount referred to in this Section or such other Sections or to
provide that other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Sections 1011(b), 1014 and 1301(h).
A supplemental indenture which (x) changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of the Holders of, or which is to remain in effect only so long as there
shall be Outstanding, Securities of one or more particular series, or one or
more Tranches thereof, or (y) modifies the rights of the Holders of Securities
of such series or Tranches with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
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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.
Anything in this Indenture to the contrary notwithstanding, if the
Officer's Certificate, supplemental indenture or Board Resolution, as the case
may be, establishing the Securities of any series or Tranche shall provide that
the Company may make certain specified additions, changes or eliminations to or
from this Indenture which shall be specified in such Officer's Certificate,
supplemental indenture or Board Resolution establishing such series or Tranche,
(a) the Holders of Securities of such series or Tranche shall be deemed to have
consented to a supplemental indenture containing such additions, changes or
eliminations to or from this Indenture which shall be specified in such
Officer's Certificate, supplemental indenture or Board Resolution establishing
such series or Tranche, (b) no Act of such Holders shall be required to evidence
such consent and (c) such consent may be counted in the determination of whether
or not the Holders of the requisite principal amount of Securities shall have
consented to such supplemental indenture.
SECTION 1303. 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 1001) shall be fully protected in relying upon, an
Opinion of Counsel and an Officer's Certificate stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and
containing the statements required by Section 102. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which adversely
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1304. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by this Article may
restate this Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1305. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 1306. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company, and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
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SECTION 1307. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular series of
Securities shall have been established in or pursuant to a Board Resolution or
an Officer's Certificate pursuant to a supplemental indenture or Board
Resolution as contemplated by Section 301, and not in an indenture supplemental
hereto, additions to, changes in or the elimination of any of such terms may be
effected by means of a supplemental Board Resolution or Officer's Certificate
pursuant to a Board Resolution or a supplemental indenture and complying with
the requirements of Section 102, as the case may be, delivered to, and accepted
by, the Trustee in writing; provided, however, that such supplemental Board
Resolution or Officer's Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this Indenture which
would be required to be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been appropriately satisfied.
Upon the written acceptance thereof by the Trustee, any such supplemental Board
Resolution or Officer's Certificate shall be deemed to be effective and
constitute part of this Indenture and a supplemental indenture hereunder. Such
acceptance shall be conveyed by a written instrument signed by a Responsible
Officer of the Trustee.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 1401, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the Trustee shall
determine, or, with the approval of the Company, at any other place. Notice of
every such meeting, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 33% in aggregate principal amount
of all of such series and Tranches, considered as one class, for any purpose
specified in Section 1401, 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 Securities of such series and Tranches in the
amount above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
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(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice if the
Holders of all Outstanding Securities of such series or Tranches are present in
person or by proxy and if representatives of the Company and the Trustee are
present, or if notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series, or any Tranche or Tranches
thereof or by such of them as are not present at the meeting in person or by
proxy, and by the Company and the Trustee.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series or Tranches,
or (b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as provided
by Section 1405(e), notice of the reconvening of any meeting adjourned for more
than 30 days shall be given as provided in Section 1402(a) not less than ten
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series and Tranches which shall constitute a quorum.
Except as limited by Section 1302, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
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Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
SECTION 1405. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall remain in
effect and be binding upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by the Holder or future
Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in Section 1402(b), in which case the
Company or the Holders of Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches represented in person
or by proxy at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1402 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
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SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches with respect
to which the meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record, in duplicate, of the
proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1402
and, if applicable, Section 1404. 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 1407. 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 one or more
written instruments as provided in Section 104.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 1501. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities or any part thereof, or
for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, shareholder, member, limited
partner, officer, manager or director, as such, past, present or future of the
Company or of any predecessor or successor of the Company (either directly or
through the Company or a predecessor or successor of the Company), whether by
virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly agreed
and understood that this Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, shareholder, member, limited partner, officer,
manager or director, past, present or future, of the Company or of any
predecessor or successor of the Company, either directly or indirectly through
the Company or any predecessor or successor of the Company, because of the
indebtedness hereby authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or to be implied herefrom or therefrom, and that any such personal liability is
hereby expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.
-------------------------
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
ONCOR ELECTRIC DELIVERY COMPANY
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer and
Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
Vice President
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