Exhibit 4(d)
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TUCSON ELECTRIC POWER COMPANY
TO
BANK OF MONTREAL TRUST COMPANY
TRUSTEE
_______________
Indenture
DATED AS OF AUGUST 1, 1998
_______________
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TUCSON ELECTRIC POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF AUGUST 1, 1998
TRUST INDENTURE ACT SECTION INDENTURE SECTION(S)
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Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . 809
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 809
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 808, 810
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . 813
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 813
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 813
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . 901
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . 902
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 902
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Section 314(a) . . . . . . . . . . . . . . . . . . . . 902, 507
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . 312, 315, 318, 319
(e) . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . 801, 803
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 802
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 801
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 801
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 714
Section 316(a) . . . . . . . . . . . . . . . . . . . . 712, 713
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 702, 712
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 713
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 708
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . 703
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 705
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 503
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . 107
TABLE OF CONTENTS
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PAGE
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Recital of the Company . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. General Definitions . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . 3
Class A Bonds . . . . . . . . . . . . . . . . . . . . . 3
Class A Mortgage . . . . . . . . . . . . . . . . . . . . 3
Collateral Release Date . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order or Company Request . . . . . . . . . . . . 3
Consolidated Tangible Net Worth . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . 3
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . 4
Eligible Obligations . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . 4
Excepted Property . . . . . . . . . . . . . . . . . . . 4
Expert . . . . . . . . . . . . . . . . . . . . . . . . . 4
Governmental Authority . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . 5
Independent . . . . . . . . . . . . . . . . . . . . . . 5
Independent Expert's Certificate . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . 5
Investment Securities . . . . . . . . . . . . . . . . . 5
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . 5
1941 Mortgage . . . . . . . . . . . . . . . . . . . . . 5
1992 Mortgage . . . . . . . . . . . . . . . . . . . . . 6
Notice of Default . . . . . . . . . . . . . . . . . . . 6
Officer's Certificate . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . . . 7
Periodic Offering . . . . . . . . . . . . . . . . . . . 7
Permitted Secured Debt . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . . . . . 8
Purchase Money Lien . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . 8
Required Currency . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . 8
Secured Debt . . . . . . . . . . . . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register . . . . . . . . . . . . . . . . . . . 8
Security Registrar . . . . . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . 8
Stated Interest Rate . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . 9
Successor . . . . . . . . . . . . . . . . . . . . . . . 9
Tranche . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 9
United States . . . . . . . . . . . . . . . . . . . . . 9
Unpaid Interest . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions . . . . . 9
SECTION 103. Content and Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . . . . 10
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, Etc. to Trustee and Company . . . . . 13
SECTION 106. Notice to Holders of Securities; Waiver . . . . 14
SECTION 107. Conflict with Trust Indenture Act . . . . . . . 14
SECTION 108. Effect of Headings and Table of Contents . . . 14
SECTION 109. Successors and Assigns . . . . . . . . . . . . 14
SECTION 110. Separability Clause . . . . . . . . . . . . . . 15
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . 15
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . 15
SECTION 114. Investment of Cash Held by Trustee . . . . . . 15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of Authentication 17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . 18
SECTION 302. Denominations . . . . . . . . . . . . . . . . . 21
SECTION 303. Execution, Dating, Certificate of
Authentication . . . . . . . . . . . . . . . . 22
SECTION 304. Temporary Securities . . . . . . . . . . . . . 24
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 by Security Registrar . . . . . . 28
SECTION 310. Computation of Interest . . . . . . . . . . . . 29
SECTION 311. Payment to Be in Proper Currency . . . . . . . 29
SECTION 312. Delivery of Class A Bonds . . . . . . . . . . . 29
SECTION 313. Registration and Ownership of Class A Bonds . . 31
SECTION 314. Payments on Class A Bonds . . . . . . . . . . . 31
SECTION 315. Surrender of Class A Bonds . . . . . . . . . . 32
SECTION 316. No Transfer of Class A Bonds . . . . . . . . . 33
SECTION 317. Voting of Class A Bonds . . . . . . . . . . . . 33
SECTION 318. Discharge of Class A Mortgages . . . . . . . . 34
SECTION 319. Experts' Certificates . . . . . . . . . . . . . 35
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. Applicability of Article . . . . . . . . . . . 36
SECTION 402. Election to Redeem; Notice to Trustee . . . . . 36
SECTION 403. Selection of Securities to Be Redeemed . . . . 36
SECTION 404. Notice of Redemption . . . . . . . . . . . . . 37
SECTION 405. Securities Payable on Redemption Date . . . . . 38
SECTION 406. Securities Redeemed in Part . . . . . . . . . . 39
ARTICLE FIVE
COVENANTS
SECTION 501. Payment of Securities. . . . . . . . . . . . . 39
SECTION 502. Maintenance of Office or Agency . . . . . . . . 39
SECTION 503. Money for Securities Payments to Be Held in
Trust . . . . . . . . . . . . . . . . . . . . 40
SECTION 504. Corporate Existence . . . . . . . . . . . . . . 41
SECTION 505. Maintenance of Properties . . . . . . . . . . . 41
SECTION 506. Waiver of Certain Covenants . . . . . . . . . . 42
SECTION 507. Annual Officer's Certificate as to Compliance. 42
SECTION 508. Limitation on Secured Debt . . . . . . . . . . 42
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Securities . . . 48
SECTION 602. Satisfaction and Discharge of Indenture . . . . 50
SECTION 603. Application of Trust Money . . . . . . . . . . 51
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. Events of Default . . . . . . . . . . . . . . . 51
SECTION 702. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . 53
SECTION 703. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . 54
SECTION 704. Application of Money Collected . . . . . . . . 55
SECTION 705. Trustee May File Proofs of Claim . . . . . . . 55
SECTION 706. Trustee May Enforce Claims without Possession
of Securities . . . . . . . . . . . . . . . . 56
SECTION 707. Limitation on Suits . . . . . . . . . . . . . . 56
SECTION 708. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . 57
SECTION 709. Restoration of Rights and Remedies . . . . . . 57
SECTION 710. Rights and Remedies Cumulative . . . . . . . . 57
SECTION 711. Delay or Omission Not Waiver . . . . . . . . . 58
SECTION 712. Control by Holders of Securities . . . . . . . 58
SECTION 713. Waiver of Past Defaults . . . . . . . . . . . . 58
SECTION 714. Undertaking for Costs . . . . . . . . . . . . . 59
SECTION 715. Waiver of Stay or Extension Laws . . . . . . . 59
SECTION 716. Defaults under Class A Mortgages . . . . . . . 59
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Certain Duties and Responsibilities . . . . . . 60
SECTION 802. Notice of Defaults . . . . . . . . . . . . . . 61
SECTION 803. Certain Rights of Trustee . . . . . . . . . . . 61
SECTION 804. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 62
SECTION 805. May Hold Securities . . . . . . . . . . . . . . 63
SECTION 806. Money Held in Trust . . . . . . . . . . . . . . 63
SECTION 807. Compensation and Reimbursement . . . . . . . . 63
SECTION 808. Disqualification; Conflicting Interests . . . . 64
SECTION 809. Corporate Trustee Required; Eligibility . . . . 64
SECTION 810. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 65
SECTION 811. Acceptance of Appointment by Successor . . . . 66
SECTION 812. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . 67
SECTION 813. Preferential Collection of Claims against
Company . . . . . . . . . . . . . . . . . . . 67
SECTION 814. Appointment of Authenticating Agent . . . . . . 67
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
SECTION 901. Lists of Holders . . . . . . . . . . . . . . . 69
SECTION 902. Reports by Trustee and Company . . . . . . . . 70
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. Company may Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . . . 70
SECTION 1002. Successor Substituted . . . . . . . . . . . . 71
SECTION 1003. Release of Company upon Conveyance or
Other Transfer . . . . . . . . . . . . . . . 71
SECTION 1004. Merger into Company . . . . . . . . . . . . . 71
SECTION 1005. Transfer of Less than the Entirety . . . . . . 72
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures without
Consent of Holders . . . . . . . . . . . . . 74
SECTION 1102. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . 75
SECTION 1103. Execution of Supplemental Indentures . . . . . 77
SECTION 1104. Effect of Supplemental Indentures . . . . . . 77
SECTION 1105. Conformity with Trust Indenture Act . . . . . 78
SECTION 1106. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . 78
SECTION 1107. Modification without Supplemental Indenture . 78
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. Purposes for Which Meetings May Be Called. . . 78
SECTION 1202. Call, Notice and Place of Meetings . . . . . . 79
SECTION 1203. Persons Entitled to Vote at Meetings . . . . . 79
SECTION 1204. Quorum; Action . . . . . . . . . . . . . . . . 80
SECTION 1205. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings . 81
SECTION 1206. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . 82
SECTION 1207. Action without Meeting . . . . . . . . . . . . 82
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 1301. Liability Solely Corporate . . . . . . . . . . 82
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . 84
INDENTURE, dated as of August 1, 1998 between TUCSON
ELECTRIC POWER COMPANY, a corporation organized and existing
under the laws of the State of Arizona (hereinafter sometimes
called the "Company"), and BANK OF MONTREAL TRUST COMPANY, a
banking corporation organized and existing under the laws of the
State of New York, trustee (hereinafter sometimes called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more
series as contemplated herein; all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the purchase of the
Securities by the Holders thereof, it is hereby covenanted and
agreed by and between the Company and the Trustee that all the
Securities are to be authenticated and delivered subject to the
further covenants, conditions and trusts hereinafter set forth,
and the Company hereby covenants and agrees to and with the
Trustee, for the equal and ratable benefit of all Holders of the
Securities or of series thereof (except as otherwise contemplated
herein), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. GENERAL DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
(b) all terms used herein without definition
which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings
assigned to them therein;
(c) all terms used herein without definition
which are defined in the Uniform Commercial Code as in
effect in any jurisdiction in which any property of the
Company is located shall have the meanings assigned to
them therein with respect to such property;
(d) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States; and, except as otherwise herein
expressly provided, the term "generally accepted
accounting principles" with respect to any computation
required or permitted hereunder shall mean such
accounting principles as are generally accepted in the
United States at the date of such computation or, at
the election of the Company from time to time, at the
date of the execution and delivery of this Indenture;
provided, however, that in determining generally
accepted accounting principles applicable to the
Company, effect shall be given, to the extent required,
to any order, rule or regulation of any administrative
agency, regulatory authority or other governmental body
having jurisdiction over the Company; and
(e) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this
Indenture as a whole and not to any particular Article,
Section or other subdivision.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
generally the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
to act on behalf of the Trustee to authenticate the Securities of
one or more series.
"AUTHORIZED OFFICER" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer or the Corporate Secretary or any other duly authorized
officer, agent or attorney-in-fact of the Company named in an
Officer's Certificate signed by any of such corporate officers.
"BOARD OF DIRECTORS" means either the board of
directors of the Company or any committee thereof duly authorized
to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution
certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"CLASS A BONDS" means bonds or other obligations now or
hereafter issued and Outstanding under either Class A Mortgage;
provided, however, that, for purposes of Section 312 as of any
time while the 1941 Mortgage remains in effect, "Class A Bonds"
means bonds or other obligations issued under the 1941 Mortgage;
and provided, further, that, for purposes of Section 312 as of
any time after the 1941 Mortgage shall have been satisfied and
discharged and while the 1992 Mortgage shall remain in effect,
"Class A Bonds" means bonds or other obligations issued under the
1992 Mortgage.
"CLASS A MORTGAGE" means the 1941 Mortgage or the 1992
Mortgage.
"COLLATERAL RELEASE DATE" means the date, if any, on
which Class A Bonds are surrendered by the Trustee pursuant to
Section 318 without any other Class A Bonds being substituted
therefor, as contemplated by subsection (e) of Section 318.
"COMMISSION" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of the execution and delivery of this Indenture
such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body, if
any, performing such duties at such time.
"COMPANY" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"COMPANY ORDER" or "Company Request" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CONSOLIDATED TANGIBLE NET WORTH" has the meaning
specified in Section 508.
"CORPORATE TRUST OFFICE" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution and delivery of this Indenture is located
at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"CORPORATION" means a corporation, association,
company, joint stock company or business trust.
"DEBT" has the meaning specified in Section 508.
"DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 702. "INTEREST" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in
Dollars, Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency,
such other obligations or instruments as shall be
specified with respect to such Securities as
contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section
701.
"EXCEPTED PROPERTY" has the meaning specified in
Section 508.
"EXPERT" means a Person which is an engineer, appraiser
or other expert and which, with respect to any certificate to be
signed by such Person and delivered to the Trustee, is qualified
to pass upon the matter set forth in such certificate; "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
"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.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department, agency,
authority or other instrumentality of any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States entitled to the
benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership interest
in obligations described in clause (a) above or in any
specific interest or principal payments due in respect
thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments
shall be a bank or trust company (which may include the
Trustee or any Paying Agent) subject to Federal or
State supervision or examination with a combined
capital and surplus of at least Fifty Million Dollars
($50,000,000); and provided, further, that except as
may be otherwise required by law, such custodian shall
be obligated to pay to the holders of such
certificates, depositary receipts or other instruments
the full amount received by such custodian in respect
of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally
executed and delivered and as it may from time to time be amended
and/or supplemented by one or more indentures or other
instruments supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by
Section 301.
"INDEPENDENT", when applied to any Expert, means such a
Person who (a) is in fact independent, (b) does not have any
direct material financial interest in the transferee or in any
obligor upon the Securities or in any Affiliate of the
transferee, (c) is not connected with the transferee or such
other obligor as an officer, employee, promoter, underwriter,
trustee, partner, director or any person performing similar
functions and (d) is approved by the Trustee in the exercise of
reasonable care.
"INDEPENDENT EXPERT'S CERTIFICATE" means a certificate
signed by an authorized officer of the Company (or, in the case
of a certificate delivered pursuant to Section 1005, of the
transferee of the subject property) and by an Independent Expert
(which Independent Expert shall be selected either by the board
of directors or by an authorized officer of the Company or such
transferee, as the case may be, the execution of such certificate
by such authorized officer to be conclusive evidence of such
selection) and delivered to the Trustee.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"INVESTMENT SECURITIES" has the meaning specified in
Section 114.
"LIEN" has the meaning specified in Section 508.
"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.
"1941 MORTGAGE" means the Indenture, dated as of
April 1, 1941, of The Tucson Gas, Electric Light and Power
Company, predecessor of the Company, heretofore executed and
delivered to The Chase National Bank of the City of New York,
predecessor of The Chase Manhattan Bank, as trustee, as such
indenture has been heretofore and is hereafter amended and
supplemented.
"1992 MORTGAGE" means the Indenture of Mortgage and
Deed of Trust, dated as of December 1, 1992 of the Company
executed and delivered to Bank of Montreal Trust Company, as
trustee, as such indenture has been heretofore and is hereafter
amended and supplemented.
"NOTICE OF DEFAULT" has the meaning specified in
Section 701.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company or other counsel
acceptable to the Trustee and who may be an employee or Affiliate
of the Company.
"OUTSTANDING", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore canceled or delivered
to the Trustee for cancellation;
(b) Securities deemed to have been paid for all
purposes of this Indenture in accordance with Section
601 (whether or not the Company's indebtedness in
respect thereof shall be satisfied and discharged for
any other purpose); and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it and
the Company that such Securities are held by a bona
fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given or made any request, demand,
authorization, direction, notice, consent or waiver hereunder or
whether or not a quorum is present at a meeting of Holders of
Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the
Company or of such other obligor (unless the Company,
such obligor or such Affiliate owns all Securities
Outstanding under this Indenture, or all Outstanding
Securities of each such series and each such Tranche,
as the case may be, determined without regard to this
clause (x)) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have
been pledged in good faith may be regarded as
Outstanding if it is established to the reasonable
satisfaction of the Trustee that the pledgee, and not
the Company, any such other obligor or Affiliate of
either thereof, has the right so to act with respect to
such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor; and
(y) the principal amount of a Discount Security
that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 702; and
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
"OUTSTANDING", when used with respect to Class A Bonds,
has the meaning specified in the related Class A Mortgage.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if
any, or interest, if any, on any Securities on behalf of the
Company.
"PERIODIC OFFERING" means an offering of Securities of
a series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents from
time to time subsequent to the initial request for the
authentication and delivery of such Securities by the Trustee,
all as contemplated in Section 301 and clause (b) of Section 303.
"PERMITTED SECURED DEBT" has the meaning specified in
Section 508.
"PERSON" means any individual, corporation,
partnership, limited liability partnership, limited liability
company, joint venture, trust or unincorporated organization or
any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the
Securities of any series, or any Tranche thereof, means the place
or places, specified as contemplated by Section 301, at which,
subject to Section 502, principal of and premium, if any, and
interest, if any, on the Securities of such series or Tranche are
payable.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"PURCHASE MONEY LIEN" has the meaning specified in
Section 508.
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in
Section 311.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"SECURED DEBT" has the meaning specified in Section
508.
"SECURITIES" means any bonds, notes and other evidences
of indebtedness authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Unpaid
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest
Rate on an obligation shall be made (a) if the Company's
obligations in respect of any other indebtedness shall be
evidenced or secured in whole or in part by such obligation, by
reference to the lower of the Stated Interest Rate on such
obligation and the Stated Interest Rate on such other
indebtedness and (b) without regard to the effective interest
cost to the Company of such obligation or of any such other
indebtedness.
"STATED MATURITY", when used with respect to any
obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such obligation
or such installment of principal or interest is stated to be due
and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"SUCCESSOR" has the meaning set forth in Section 1001.
"TRANCHE" means a group of Securities which (a) are of
the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at
such time.
"TRUSTEE" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and, if at any time there
is more than one Person acting as trustee hereunder, "Trustee"
shall mean each such Person so acting.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
"UNPAID INTEREST" has the meaning specified in Section
307.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, it being understood that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(c) a statement that, in the opinion of each such
individual, such individual has made such examination
or investigation as is necessary to enable such
individual to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of
each such individual, such condition or covenant has
been complied with.
SECTION 103. CONTENT AND FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) Any Officer's Certificate may be based (without
further examination or investigation), insofar as it relates to
or is dependent upon legal matters, upon an opinion of, or
representations by, counsel, unless, in any case, such officer
has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which such
Officer's Certificate may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is
dependent upon factual matters, information with respect to which
is in the possession of the Company, upon a certificate of, or
representations by, an officer or officers of the Company, unless
such counsel has actual knowledge that the certificate or opinion
or representations with respect to the matters upon which his
opinion may be based as aforesaid are erroneous. In addition,
any Opinion of Counsel may be based (without further examination
or investigation), insofar as it relates to or is dependent upon
matters covered in an Opinion of Counsel rendered by other
counsel, upon such other Opinion of Counsel, unless such counsel
has actual knowledge that the Opinion of Counsel rendered by such
other counsel with respect to the matters upon which his Opinion
of Counsel may be based as aforesaid are erroneous. If, in order
to render any Opinion of Counsel provided for herein, the signer
thereof shall deem it necessary that additional facts or matters
be stated in any Officer's Certificate provided for herein, then
such certificate may state all such additional facts or matters
as the signer of such Opinion of Counsel may request.
(b) In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents. Where any Person is
required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee
of any Board Resolution, Officer's Certificate, Opinion of
Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or
omission shall be discovered therein, a new document or
instrument may be substituted therefor in corrected form with the
same force and effect as if originally filed in the corrected
form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered
as of the date or dates required with respect to the document or
instrument for which it is substituted. Anything in this
Indenture to the contrary notwithstanding, if any such corrective
document or instrument indicates that action has been taken by or
at the request of the Company which could not have been taken had
the original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits provided by this Indenture equally and ratably with
all other Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided by
this Indenture to be made, given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders voting in
favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Twelve, or a
combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at
any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 801) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall be proved in
the manner provided in Section 1206.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem
sufficient. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The ownership of Securities, the principal amount
(except as otherwise contemplated in clause (y) of the first
proviso to the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of holding the same,
shall be proved by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument executed
and delivered by or on behalf of a Holder may be revoked with
respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in
which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to such action may be
prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities
of such series or Tranche.
(g) The Company may, at its option, by Company Order,
fix in advance a record date for the determination of Holders
entitled to give any request, demand, authorization, direction,
notice, consent, waiver or other Act solicited by the Company,
but the Company shall have no obligation to do so; provided,
however, that the Company may not fix a record date for the
giving or making of any notice, declaration, request or direction
referred to in the next sentence. In addition, the Trustee may,
at its option, fix in advance a record date for the determination
of Holders of Securities of any series entitled to join in the
giving or making of any Notice of Default, any declaration of
acceleration referred to in Section 702, any request to institute
proceedings referred to in Section 707 or any direction referred
to in Section 712, in each case with respect to Securities of
such series. If any such record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or
other Act, or such notice, declaration, request or direction, may
be given before or after such record date, but only the Holders
of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining (i) whether
Holders of the requisite proportion of the Outstanding Securities
have authorized or agreed or consented to such Act (and for that
purpose the Outstanding Securities shall be computed as of the
record date) and/or (ii) which Holders may revoke any such Act
(notwithstanding subsection (e) of this Section); and any such
Act, given as aforesaid, shall be effective whether or not the
Holders which authorized or agreed or consented to such Act
remain Holders after such record date and whether or not the
Securities held by such Holders remain Outstanding after such
record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise
expressly provided herein) if the same shall be in writing and
delivered personally to an officer or other responsible employee
of the addressee, or transmitted by facsimile transmission, telex
or other direct written electronic means to such telephone number
or other electronic communications address set forth opposite
such parties name below or as the parties hereto shall from time
to time designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such party's name
below or to such other address as either party hereto may from
time to time designate:
If to the Trustee, to:
Bank of Montreal Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to:
Tucson Electric Power Company
000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission, telex or other direct written electronic means, on
the date of transmission, and if transmitted by registered mail,
on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any provision of the Trust Indenture Act, such other
provision shall control; and if any provision hereof otherwise
conflicts with the Trust Indenture Act, the Trust Indenture Act
shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Securities shall be held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by
and construed in accordance with the law of the State of New York
(including without limitation Section 5-1401 of the New York
General Obligations Law or any successor to such statute), except
to the extent that the Trust Indenture Act shall be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
contrary provision in the Securities of any series, or any
Tranche thereof, or in the indenture supplemental hereto, Board
Resolution or Officer's Certificate which establishes the terms
of the Securities of such series or Tranche) payment of interest
or principal and premium, if any, need not be made at such Place
of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue
on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
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, 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.
Notwithstanding the foregoing, if an Event of Default
shall have occurred and be continuing, interest on Investment
Securities and any gain upon the sale thereof shall be held, in
trust, until such Event of Default shall have been cured or
waived, whereupon such interest and gain shall be promptly paid
over to the Company free and clear of any Lien.
"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 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.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms established in the Officer's
Certificate, the indenture supplemental hereto or the Board
Resolution establishing such series, in any case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities. If the form or forms of Securities of any series are
established in a Board Resolution or in an Officer's Certificate,
such Board Resolution and Officer's Certificate, if any, shall be
delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The Securities of each series shall be issuable in
registered form without coupons. The definitive Securities shall
be produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution
thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
-----------------------------
as Trustee
By: -------------------------
Authorized Signature
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Subject to the last paragraph of this Section, prior to the
authentication and delivery of Securities of any series there
shall be established by specification in an Officer's
Certificate, a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such series
from Securities of all other series);
(b) any limit upon the aggregate principal amount
of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to
Section 304, 305, 306, 406 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered
hereunder);
(c) the Persons (without specific identification)
to whom interest, if any, on Securities of such series,
or any Tranche thereof, shall be payable, if other than
the Persons in whose names such Securities (or one or
more Predecessor Securities) are registered at the
close of business on the Regular Record Date for such
interest;
(d) the date or dates on which the principal of
the Securities of such series, or any Tranche thereof,
is payable or any formulary or other method or other
means by which such date or dates shall be determined,
by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise
(without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension); and
the right, if any, to extend the Maturity of the
Securities of such series, or any Tranche thereof, and
the duration of any such extension;
(e) the rate or rates at which the Securities of
such series, or any Tranche thereof, shall bear
interest, if any (including the rate or rates at which
overdue principal shall bear interest, if different
from the rate or rates at which such Securities shall
bear interest prior to Maturity, and, if applicable,
the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other
method or other means by which such rate or rates shall
be determined, by reference to an index or other fact
or event ascertainable outside of this Indenture or
otherwise; the date or dates from which such interest
shall accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date,
if any, for the interest payable on such Securities on
any Interest Payment Date; the basis of computation of
interest, if other than as provided in Section 310; and
the right, if any, to extend the interest payment
periods and the duration of any such extension;
(f) the place or places at which and/or the
methods (if other than as provided elsewhere in this
Indenture) by which (i) the principal of and premium,
if any, and interest, if any, on Securities of such
series, or any Tranche thereof, shall be payable, (ii)
registration of transfer of Securities of such series,
or any Tranche thereof, may be effected, (iii)
exchanges of Securities of such series, or any Tranche
thereof, may be effected and (iv) notices and demands
to or upon the Company in respect of the Securities of
such series, or any Tranche thereof, and this Indenture
may be served; the Security Registrar and any Paying
Agent or Agents for such series or Tranche; and, if
such is the case, that the principal of such Securities
shall be payable without the presentment or surrender
thereof;
(g) the period or periods within which or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the Securities
of such series, or any Tranche thereof, may be
redeemed, in whole or in part, at the option of the
Company;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such
series, or any Tranche thereof, pursuant to any sinking
fund or other mandatory redemption provisions or at the
option of a Holder thereof and the period or periods
within which or the date or dates on which, the price
or prices at which and the terms and conditions upon
which such Securities shall be redeemed or purchased,
in whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if
other than denominations of One Thousand Dollars
($1,000) and any integral multiple thereof;
(j) the currency or currencies, including
composite currencies, in which payment of the principal
of or premium, if any, or interest, if any, on the
Securities of such series, or any Tranche thereof,
shall be payable (if other than in Dollars) and the
formulary or other method or other means by which the
equivalent of any such amount in Dollars is to be
determined for any purpose, including for the purpose
of determining the principal amount of such Securities
deemed to be Outstanding at any time;
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or
any Tranche thereof, are to be payable, at the election
of the Company or a Holder thereof, in a coin or
currency other than that in which the Securities are
stated to be payable, the period or periods within
which, and the terms and conditions upon which, such
election may be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or
any Tranche thereof, are to be payable, or are to be
payable at the election of the Company or a Holder
thereof, in securities or other property, the type and
amount of such securities or other property, or the
formulary or other method or other means by which such
amount shall be determined, and the period or periods
within which, and the terms and conditions upon which,
any such election may be made;
(m) if the amount payable in respect of the
principal of or premium, if any, or interest, if any,
on the Securities of such series, or any Tranche
thereof, may be determined with reference to an index
or other fact or event ascertainable outside of this
Indenture, the manner in which such amounts shall be
determined (to the extent not established pursuant to
clause (e) of this paragraph);
(n) if other than the principal amount thereof,
the portion of the principal amount of Securities of
such series, or any Tranche thereof, which shall be
payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 702;
(o) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may
be converted into or exchanged for shares of capital
stock or other securities of the Company or any other
Person;
(p) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in
respect of the Securities of such series, or any
Tranche thereof, denominated in a currency other than
Dollars or in a composite currency, and any additional
or alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as
provided in Section 601;
(q) if the Securities of such series, or any
Tranche thereof, are to be issued in global form, (i)
any limitations on the rights of the Holder or Holders
of such Securities to transfer or exchange the same or
to obtain the registration of transfer thereof, (ii)
any limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in definitive
form in lieu of temporary form and (iii) any and all
other matters incidental to such Securities;
(r) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental
indenture as contemplated by clause (f) of Section
1101;
(s) to the extent not established pursuant to
clause (q) of this paragraph, any limitations on the
rights of the Holders of the Securities of such Series,
or any Tranche thereof, to transfer or exchange such
Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the
registration of transfer or exchange of Securities of
such series, or any Tranche thereof, the amount or
terms thereof;
(t) any exceptions to Section 113, or variation
in the definition of Business Day, with respect to the
Securities of such series, or any Tranche thereof; and
(u) any other terms of the Securities of such
series, or any Tranche thereof.
With respect to Securities of a series subject to a
Periodic Offering, the Officer's Certificate, the indenture
supplemental hereto or the Board Resolution which establishes
such series, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
clause (b) of Section 303.
Unless otherwise specified with respect to a series of
Securities pursuant to Section 301(b), any limit upon the
aggregate principal amount of a series of Securities may be
increased without the consent of any Holders and additional
Securities of such series may be authenticated and delivered up
to the limit upon the aggregate principal amount authorized with
respect to such series as so increased.
Anything herein to the contrary notwithstanding, the
Trustee shall be under no obligation to authenticate and deliver
Securities of any series the terms of which, established as
contemplated by this Section, would affect the rights, duties,
obligations, liabilities or immunities of the Trustee under this
Indenture or otherwise.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities of each series shall be issuable in
denominations of One Thousand Dollars ($1,000) and any integral
multiple thereof.
SECTION 303. EXECUTION, DATING, CERTIFICATE OF AUTHENTICATION.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer, and may have the corporate seal
of the Company affixed thereto or reproduced thereon and attested
by any other Authorized Officer. The signature of any or all of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized
Officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing
the form or forms and terms of such series, as provided
in Sections 201 and 301;
(b) a Company Order requesting the authentication
and delivery of such Securities and, to the extent that
the terms of such Securities shall not have been
established in an Officer's Certificate, an indenture
supplemental hereto or a Board Resolution, all as
contemplated by Sections 201 and 301, either (i)
establishing such terms or (ii) in the case of
Securities of a series subject to a Periodic Offering,
specifying procedures, acceptable to the Trustee, by
which such terms are to be established (which
procedures may provide for authentication and delivery
pursuant to oral or electronic instructions from the
Company or any agent or agents thereof, which oral
instructions are to be promptly confirmed
electronically or in writing), in either case in
accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities
have been duly authorized by the Company and have
been established in conformity with the provisions
of this Indenture;
(ii) the terms of such Securities have been
duly authorized by the Company and have been
established in conformity with the provisions of
this Indenture; and
(iii) when such Securities shall have
been authenticated and delivered by the Trustee
and issued and delivered by the Company in the
manner and subject to any conditions specified in
such Opinion of Counsel, such Securities will
constitute valid obligations of the Company,
entitled to the benefits provided by this
Indenture;
provided, however, that, with respect to Securities of
a series subject to a Periodic Offering, the Trustee
shall be entitled to receive such Opinion of Counsel
only once at or prior to the time of the first
authentication and delivery of such Securities
(provided that such Opinion of Counsel addresses the
authentication and delivery of all Securities of such
series) and that, in lieu of the opinions described in
clauses (ii) and (iii) above, Counsel may opine that:
(x) when the terms of such Securities shall
have been established pursuant to a Company Order
or Orders or pursuant to such procedures as may be
specified from time to time by a Company Order or
Orders, all as contemplated by and in accordance
with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have
been duly authorized by the Company and will have
been established in conformity with the provisions
of this Indenture; and
(y) when such Securities shall have been
authenticated and delivered by the Trustee in
accordance with this Indenture and the Company
Order or Orders or the specified procedures
referred to in paragraph (x) above and issued and
delivered by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, such Securities will constitute valid
obligations of the Company, entitled to the
benefits provided by this Indenture; and
(e) so long as the Collateral Release Date shall
not have occurred, the Class A Bond and documents
specified in Section 312.
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the forms
and terms thereof, the validity thereof and the compliance of the
authentication and delivery thereof with the terms and conditions
of this Indenture, upon the Opinion or Opinions of Counsel and
the certificates and other documents delivered pursuant to this
Article at or prior to the time of the first authentication and
delivery of Securities of such series until any of such opinions,
certificates or other documents have been superseded or revoked
or expire by their terms. In connection with the authentication
and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any applicable law or any applicable
rule, regulation or order of any Governmental Authority having
jurisdiction over the Company.
If the form of terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, no Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee or an Authenticating Agent by manual signature of an
authorized officer thereof, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if (a) any Security shall have
been authenticated and delivered hereunder to the Company, or any
Person acting on its behalf, but shall never have been issued and
sold by the Company, (b) the Company shall deliver such Security
to the Security Registrar for cancellation or shall cancel such
Security and deliver evidence of such cancellation to the
Trustee, in each case as provided in Section 309, and (c) the
Company, at its election, shall deliver to the Trustee a written
statement (which need not comply with Section 102 and need not be
accompanied by an Officer's Certificate or an Opinion of Counsel)
stating that such Security has never been issued and sold by the
Company, then, for all purposes of this Indenture, such Security
shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed, photocopied or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, after the preparation of definitive Securities
of such series or Tranche, the temporary Securities of such
series or Tranche shall be exchangeable, without charge to the
Holder thereof, for definitive Securities of such series or
Tranche upon surrender of such temporary Securities at the office
or agency of the Company maintained pursuant to Section 502 in a
Place of Payment for such Securities. Upon such surrender of
temporary Securities, the Company shall, except as aforesaid,
execute and the Trustee shall authenticate and deliver in
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 one of the
offices designated pursuant to Section 502, with respect to the
Securities of each series, or any Tranche thereof, a register
(the "SECURITY REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities of such series or Tranche and the
registration of transfer thereof. The Company shall designate
one Person to maintain the Security Register for the Securities
of each series and such Person is referred to herein, with
respect to such series, as the "SECURITY REGISTRAR". Anything
herein to the contrary notwithstanding, the Company may designate
one or more of its offices as an office in which a register with
respect to the Securities of one or more series, or any Tranche
or Tranches thereof, shall be maintained, and the Company may
designate itself the Security Registrar with respect to one or
more of such series. The Security Register shall be open for
inspection by the Trustee and the Company at all reasonable
times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, upon presentment for registration of transfer of
any Security of such series or Tranche at the office or agency of
the Company maintained pursuant to Section 502 in a Place of
Payment for such series or Tranche, and further upon satisfaction
of any conditions prescribed by applicable law, 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 presentment of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so presented for
exchange, and upon satisfaction of any conditions prescribed by
applicable law, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities presented upon
such registration of transfer or exchange.
Every Security presented 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, 406 or 1106 not involving any
transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of fifteen (15) days immediately preceding the date notice
is to be given identifying the serial numbers of the Securities
of such series or Tranche called for redemption or (b) any
Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is presented to the Trustee,
the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and Tranche, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership of
and the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person deemed to be a protected purchaser
under applicable law, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, but subject to compliance with the foregoing conditions,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone other than the Holder
of such new Security, and any such new Security shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of such series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date, including without limitation interest the
payment period for which has been extended as specified with
respect to such series as contemplated by Section 301 (herein
called "UNPAID INTEREST"), shall forthwith cease to be payable to
the Holder on the related Regular Record Date by virtue of having
been such Holder, and such Unpaid Interest may be paid by the
Company, at its election in each case, as provided in clause (a)
or (b) below:
(a) The Company may elect to make payment of any
Unpaid Interest to the Persons in whose names the
Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a date (herein called a "SPECIAL RECORD
DATE") for the payment of such Unpaid Interest, which
shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of
Unpaid Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and
at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Unpaid
Interest or shall make arrangements 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 Unpaid Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date
for the payment of such Unpaid Interest which shall be
not more than thirty (30) days and not less than ten
(10) days prior to the date of the proposed payment and
not less than twenty-five (25) days after the receipt
by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense
of the Company, shall, not less than fifteen (15) days
prior to such Special Record Date, cause notice of the
proposed payment of such Unpaid Interest and the
Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such
series at the address of such Holder as it appears in
the Security Register. Notice of the proposed payment
of such Unpaid Interest and the Special Record Date
therefor having been so mailed, such Unpaid Interest
shall be paid to the Persons in whose names the
Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date.
(b) The Company may make payment of any Unpaid
Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to the due presentment of any Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
any Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal of and premium,
if any, and (subject to Section 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities presented for payment, redemption,
registration of transfer or exchange shall, if presented to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
Unless by a Company Order the Company shall direct that canceled
Securities be returned to it, all canceled Securities held by the
Security Registrar shall be disposed of in accordance with the
Security Registrar's customary procedures, and the Security
Registrar shall promptly deliver a certificate of disposition to
the Trustee and the Company. The Security Registrar shall
promptly deliver evidence of any cancellation of a Security in
accordance with this Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a three hundred sixty (360) day year consisting of
twelve (12) thirty (30) day months and, with respect to any
period less than a full calendar month, on the basis of the
actual number of days elapsed during such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium, if
any, or interest, if any, thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay
and exchange rate fluctuation, shall be borne by the Company, the
Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful
misconduct.
SECTION 312. DELIVERY OF CLASS A BONDS.
As contemplated in Section 303 and so long as the
Collateral Release Date shall not have occurred, prior to the
authentication and delivery by the Trustee of Securities of any
series, the Company shall deliver to the Trustee, in addition to
the documents with respect to the Securities of such series
specified in Section 303,
(a) Class A Bonds (i) maturing (or being subject
to mandatory redemption) on such dates and in such
principal amounts that, at each Stated Maturity of the
Securities of such series (or the Tranche thereof then
to be authenticated and delivered), there shall mature
(or be redeemed) Class A Bonds equal in principal
amount to the Securities of such series or Tranche then
to mature and (ii) containing, in addition to any
mandatory redemption provisions applicable to all Class
A Bonds Outstanding under the related Class A Mortgage
and any mandatory redemption provisions contained
therein pursuant to clause (i) 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 Tranche or for the redemption thereof at the
option of the Holder; it being expressly understood
that such Class A Bonds (x) may, but need not, bear
interest, (y) may, but need not, contain provisions for
the redemption thereof at the option of the Company,
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 in accordance with
this Article.
(b) an Opinion of Counsel to the effect that:
(i) the form or forms of such Class A Bonds
have been duly authorized by the Company and have
been established in conformity with the provisions
of the related Class A Mortgage;
(ii) the terms of such Class A Bonds have
been duly authorized by the Company and have been
established in conformity with the provisions of
the related Class A Mortgage; and
(iii) (A) such Class A Bonds have been duly
authenticated and delivered by the trustee under
the related Class A Mortgage and (B) when the
Securities to be authenticated and delivered on
the basis of the delivery to the Trustee of such
Class A Bonds shall have been authenticated and
delivered by the Trustee in accordance with this
Indenture and issued and delivered by the Company
in the manner and subject to any conditions
specified in such Opinion of Counsel, such Class A
Bonds will constitute valid obligations of the
Company, entitled to the benefit of the Lien of
such Class A Mortgage equally and ratably with all
other Class A Bonds then Outstanding under such
Class A Mortgage;
provided, however, that, with respect to Securities of
a series subject to a Periodic Offering, the Trustee
shall be entitled to receive such Opinion of Counsel
only once at or prior to the time of the first
authentication and delivery of such Securities and
that, in lieu of the opinions described in clauses (ii)
and (iii) above, counsel may opine that:
(x) when the terms of such Class A Bonds
shall have been established in accordance with the
instrument or instruments creating the series of
which such Class A Bonds are a part, such terms
will have been duly authorized by the Company and
will have been established in conformity with the
provisions of the related Class A Mortgage; and/or
(y) (A) either (1) such Class A Bonds have
been duly authenticated and delivered by the
trustee under the related Class A Mortgage or (2)
when such Class A Bonds shall have been
authenticated and delivered by the trustee under
the related Class A Mortgage in accordance with
the instrument or instruments creating the series
of which such Class A Bonds are a part, such Class
A Bonds will have been duly authenticated and
delivered under such Class A Mortgage and (B) when
such Class A Bonds shall have been issued and
delivered by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, and when the Securities to be
authenticated and delivered on the basis of the
delivery to the Trustee of such Class A Bonds
shall have been authenticated and delivered by the
Trustee in accordance with this Indenture and
issued and delivered by the Company in the manner
and subject to any conditions specified in such
Opinion of Counsel, such Class A Bonds will
constitute valid obligations of the Company,
entitled to the benefit of the Lien of such Class
A Mortgage equally and ratably with all other
Class A Bonds then Outstanding under such Class A
Mortgage; and
(c) an Expert's Certificate as to the fair value
of such Class A Bonds, except as otherwise provided in
Section 319(d).
Notwithstanding the foregoing, the Trustee shall not be
entitled to receive Class A Bonds in connection with the
authentication and delivery of Securities of any series or
Tranche upon the surrender in exchange therefor of Outstanding
Securities of another series or Tranche, of like tenor and
aggregate principal amount, if and to the extent that the Trustee
shall retain the Class A Bonds delivered to it in connection with
the authentication and delivery of the Securities being
surrendered, as contemplated in Section 315.
SECTION 313. REGISTRATION AND OWNERSHIP OF CLASS A BONDS.
Class A Bonds delivered to the Trustee pursuant to this
Article shall be registered in the name of the Trustee or its
nominee and shall be owned and held by the Trustee, subject to
the provisions of this Indenture, for the benefit of the Holders
of all Securities from time to time Outstanding, and the Company
shall have no interest therein. The Trustee shall be entitled to
exercise all rights of securityholders under each Class A
Mortgage either in its discretion or as otherwise provided in
this Article or in Article Seven.
SECTION 314. PAYMENTS ON CLASS A BONDS.
(a) Any payment by the Company of principal of or
premium or interest on any Class A Bonds delivered to and held by
the Trustee pursuant to this Article shall be applied by the
Trustee to the payment of any principal, premium or interest, as
the case may be, in respect of the Securities which is then due,
and, to the extent of such application, the obligation of the
Company hereunder to make such payment in respect of the
Securities shall be deemed to have been satisfied and discharged.
If, at the time of any such payment of principal of
Class A Bonds delivered to and held by the Trustee pursuant to
this Article, there shall be no principal then due in respect of
the Securities, such payment in respect of such Class A Bonds
shall be held by the Trustee, in trust, and shall be applied to
the payment of the principal of an equal principal amount of
Securities at Maturity.
If, at the time of any such payment of premium or
interest on Class A Bonds delivered to and held by the Trustee
pursuant to this Article, there shall be no premium or interest,
as the case may be, then due in respect of the Securities, such
payment in respect of such Class A Bonds shall be remitted to the
Company upon receipt by the Trustee of a Company Order requesting
the same, together with an Officer's Certificate stating that no
Event of Default has occurred and is continuing; provided,
however, that, if an Event of Default shall have occurred and be
continuing, such proceeds shall be held by the Trustee, in trust,
until such Event of Default shall have been cured or waived.
(b) Any payment by the Company hereunder of principal
of or premium or interest on Securities which shall have been
authenticated and delivered upon the basis of the delivery to the
Trustee of Class A Bonds (other than by the application of the
proceeds of a payment in respect of such Class A Bonds) shall, to
the extent thereof, be deemed, for all purposes of this
Indenture, to satisfy and discharge the obligation of the
Company, if any, to make a payment of principal, premium or
interest, as the case may be, in respect of such Class A Bonds
which is then due.
(c) The Trustee hereby waives notice of any redemption
of Class A Bonds delivered to it pursuant to this Article.
SECTION 315. SURRENDER OF CLASS A BONDS.
At the time any Securities which shall have been
authenticated and delivered on the basis of the delivery to the
Trustee of Class A Bonds cease to be Outstanding (other than as a
result of the application of the proceeds of the payment or
redemption of such Class A Bonds), the Trustee shall surrender
to, or upon the order of, the Company an equal principal amount
of such Class A Bonds upon receipt by the Trustee of:
(a) a Company Order requesting the surrender of
such Class A Bonds; and
(b) an Expert's Certificate as to the fair value
of such Class A Bonds, except as otherwise provided in
Section 319(d).
Notwithstanding the foregoing, in the event that
Outstanding Securities of any series or Tranche are surrendered
in exchange for Securities of another series or Tranche, of like
tenor and aggregate principal amount, the Trustee shall retain
the Class A Bonds delivered in connection with the authentication
and delivery of the Securities being surrendered unless the
Company, at its election, shall tender new Class A Bonds in
substitution therefor.
SECTION 316. NO TRANSFER OF CLASS A BONDS.
Anything in this Indenture to the contrary
notwithstanding, the Trustee shall not sell, assign or otherwise
transfer any Class A Bonds delivered to and held by it pursuant
to this Article except to a successor trustee under this
Indenture and except as provided in Section 315. The Company may
take such actions as it shall deem necessary, desirable or
appropriate to effect compliance with such restrictions on
transfer, including the placing of a legend on each such Class A
Bond and the issuance of stop-transfer instructions to the
trustee under the related Class A Mortgage or any other transfer
agent thereunder.
SECTION 317. VOTING OF CLASS A BONDS.
The Trustee shall, as the holder of Class A Bonds
delivered to and held by it pursuant to Sections 312 and 313,
attend such meeting or meetings of bondholders under each Class A
Mortgage or, at its option, deliver its proxy in connection
therewith, as relate to matters with respect to which it, as such
holder, is entitled to vote or consent. The Trustee, as such
holder of Class A Bonds Outstanding under any Class A Mortgage,
shall be deemed to have voted in favor of, and/or to have
consented to, such amendments to such Class A Mortgage, if any,
as shall be set forth in the instrument or instruments
establishing such Class A Bonds. As to all other matters arising
under such Class A Mortgage, so long as no Event of Default
hereunder shall have occurred and be continuing, either at any
such meeting or meetings, or otherwise when the consent of the
holders of the Class A Bonds Outstanding under such Class A
Mortgage is sought without a meeting, the Trustee shall vote as
holder of Class A Bonds delivered to and held by it pursuant to
this Article which were delivered under such Class A Mortgage, or
shall consent with respect thereto, proportionately with the vote
or consent of the holders of all other Class A Bonds Outstanding
under such Class A Mortgage the holders of which are eligible to
vote or consent, as indicated in a Class A Bondholder's
Certificate delivered to the Trustee; provided, however, that the
Trustee shall not so vote in favor of, or so consent to, any
amendment or modification of a Class A Mortgage which, if it were
an amendment or modification of this Indenture, would require the
consent of Holders, without the prior consent, obtained in the
manner prescribed in Section 1102, of Holders of Securities which
would be required under said Section 1102 for such an amendment
or modification of this Indenture.
For purposes of this Section, "CLASS A BONDHOLDER'S
CERTIFICATE" means a certificate signed by the temporary
chairman, the temporary secretary, the permanent chairman, the
permanent secretary, or an inspector of votes at any meeting or
meetings of bondholders under a Class A Mortgage, or by the
trustee under such Class A Mortgage in the case of consents of
such bondholders which are sought without a meeting, which states
what the signer thereof reasonably believes will be the
proportionate votes or consents of the holders of all Class A
Bonds (other than the Class A Bonds delivered to and held by the
Trustee pursuant to this Article) outstanding under such Class A
Mortgage and counted for the purposes of determining whether such
bondholders have approved or consented to the matter put before
them.
SECTION 318. DISCHARGE OF CLASS A MORTGAGES.
The Trustee shall surrender for cancellation to the
trustee under any Class A Mortgage all Class A Bonds delivered to
and then held by it pursuant to this Article which were delivered
under such Class A Mortgage upon receipt by the Trustee of:
(a) a Company Order requesting such surrender for
cancellation of such Class A Bonds;
(b) an Officer's Certificate to the effect that
no Class A Bonds are Outstanding under such Class A
Mortgage other than Class A Bonds delivered to and held
by the Trustee pursuant to this Article and that
promptly upon such surrender such Class A Mortgage will
be satisfied and discharged pursuant to the terms
thereof;
(c) an Expert's Certificate as to the fair value
of such Class A Bonds to be so surrendered, except as
otherwise provided in Section 319(d); and
(d) if, at the time of such surrender, any Class
A Bonds shall be Outstanding under another Class A
Mortgage,
(i) Class A Bonds authenticated and
delivered under such other Class A Mortgage in the
same aggregate principal amount or amounts,
bearing interest at the same rate or rates and
having the same Stated Maturity or Maturities as
the Class A Bonds to be surrendered;
(ii) an Expert's Certificate as to the fair
value of such Class A Bonds so delivered, except
as otherwise provided in Section 319(d); and
(iii) an Opinion of Counsel
(A) to the effect that, upon
satisfaction and discharge of the Class A
Mortgage under which the Class A Bonds to be
so surrendered were authenticated and
delivered, the Lien of such other Class A
Mortgage on the property formerly subject to
the Lien of such Class A Mortgage to be
satisfied and discharged will be subject to
no Lien except the Lien of such other Class A
Mortgage and other Liens of the character
permitted to exist or to be thereafter
created under such Class A Mortgage to be
satisfied and discharged; and
(B) to the effect set forth in clause
(b) of Section 312 with respect to such Class
A Bonds so authenticated and delivered under
such other Class A Mortgage and delivered to
the Trustee; or
(e) if, at the time of such surrender, there is
no other Class A Mortgage in effect,
(i) an Officer's Certificate to the effect
that upon such satisfaction and discharge, the
Company will be in compliance with the covenant
contained in Section 508; and
(ii) an Opinion of Counsel to the effect
that, upon satisfaction and discharge of such
Class A Mortgage, the property formerly subject to
the Lien of such Class A Mortgage will be subject
to no Lien which secures Secured Debt other than
Permitted Secured Debt.
SECTION 319. EXPERTS' CERTIFICATES.
(a) Each Expert's Certificate as to the fair value to
the Company of Class A Bonds delivered to the Trustee pursuant to
Section 312 or 318, or as to the fair value of Class A Bonds to
be surrendered pursuant to Section 315 or 318, shall be made by
an Independent Expert if the fair value to the Company of such
Class A Bonds so delivered and of all other Class A Bonds so
delivered, or the fair value of the Class A Bonds to be so
surrendered and of all other Class A Bonds so surrendered, as the
case may be, since the commencement of the then current calendar
year, as set forth in the certificates required by this
Indenture, is ten percentum (10%) or more of the aggregate
principal amount of the Securities at the time Outstanding; but
such Expert's Certificate shall not be required to be made by an
Independent Expert in the case of any delivery or surrender of
Class A Bonds if the fair value to the Company thereof or the
fair value thereof, as the case may be, and as set forth in the
certificates required by this Indenture, is less than Twenty-five
Thousand Dollars ($25,000) or less than one percentum (1%) of the
aggregate principal amount of the Securities at the time
Outstanding.
(b) Each Expert's Certificate with respect to the fair
value of Class A Bonds being surrendered shall state that, in the
opinion of the signer, such surrender will not impair the
security under this Indenture in contravention of the provisions
hereof; it being understood, however, that no surrender of Class
A Bonds effected in accordance with the provisions, and in
compliance with the conditions, set forth in this Article and in
Sections 102 and 103 shall be deemed to impair the security of
this Indenture in contravention of any provision hereof.
(c) In assessing the fair value to the Company or the
fair value, as the case may be, of any Class A Bond, an Expert
may consider, among other things, (i) the principal amount and
remaining term to Stated Maturity of, the interest rate, if any,
on and the redemption provisions contained in such Class A Bond,
(ii) the creditworthiness of the Company, including the effect,
if any, of the prospective delivery or surrender of such Class A
Bonds on the ratings assigned to the Securities by nationally
recognized statistical rating organizations, (iii) prevailing
economic and market conditions, (iv) the restrictions on the
transfer of such Class A Bond contained in Section 316, (v)
whether or not, at the time of such assessment, the obligations
of the Company in respect of such Class A Bond shall, under the
provisions of the related Class A Mortgage or under the
provisions of this Indenture, or both, be deemed to have been
satisfied and discharged, (vi) the effect, if any, of the
prospective delivery or surrender of such Class A Bond on the
nature and extent of the security and/or protection available to
the Holders under this Indenture and (vii) any other relevant
factors.
(d) Anything in this Indenture to the contrary
notwithstanding, the Company shall not be required to deliver any
Expert's Certificate pursuant to Section 312, 315 or 318 if, in
any particular case, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Expert's
Certificate otherwise required to be delivered shall not, in such
case, be required by the Trust Indenture Act.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least forty-five (45) days
prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal
amount of such Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an
election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the
Trustee with an Officer's Certificate evidencing compliance with
such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Security Registrar from the
Outstanding Securities of such series or Tranche not previously
called for redemption, by such method as shall be provided for
any particular series or Tranche, or, in the absence of any such
provision, by such method of random selection as the Security
Registrar shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (in
any authorized denomination for Securities of such series or
Tranche) of the principal amount of Securities of such series or
Tranche having a denomination larger than the minimum authorized
denomination for Securities of such series or Tranche; provided,
however, that if, as indicated in an Officer's Certificate, the
Company shall have offered to purchase all or any principal
amount of the Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities as to which
such offer was made shall have been tendered to the Company for
such purchase, the Security Registrar, if so directed by Company
Order, shall select for redemption all or any principal amount of
such Securities which have not been so tendered.
The Security Registrar shall promptly notify the
Company and the Trustee in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner
provided in Section 106 to the Holders of the Securities to be
redeemed not less than thirty (30) nor more than sixty (60) days
prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series
or Tranche are to be redeemed, the identification of
the particular Securities to be redeemed and the
portion of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to the
Redemption Date, will become due and payable upon each
such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date,
(e) the place or places where such Securities are
to be surrendered for payment of the Redemption Price
and accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect
to such Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
With respect to any notice of redemption of Securities
at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in
accordance with Section 601, such notice may state that such
redemption shall be conditional upon the receipt by the Paying
Agent or Agents for such Securities, on or prior to the date
fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such
Securities and that if such money shall not have been so received
such notice shall be of no force or effect and the Company shall
not be required to redeem such Securities. In the event that
such notice of redemption contains such a condition and such
money is not so received, the redemption shall not be made and
within a reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that such
money was not so received and such redemption was not required to
be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the
Holders thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, upon Company Request, by the Security Registrar in
the name and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security Registrar
in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that, except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company or the Trustee, as the case may be, duly executed by, the
Holder thereof or his attorney duly authorized in writing), the
Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a
new Security or Securities of the same series and Tranche, of any
authorized denomination requested by such Holder and of like
tenor and in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
COVENANTS
SECTION 501. PAYMENT OF SECURITIES.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 502. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, an office
or agency where payment of such Securities shall be made, where
the registration of transfer or exchange of such Securities may
be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office
or agency and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 503. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche thereof,
it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of
the principal of and premium, if any, or interest, if
any, on such Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to
make any payment of principal of or premium, if any, or
interest, if any, on such Securities; and
(c) at any time during the continuance of any
such failure, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust
by such Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Six; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest, if any, has become
due and payable shall be paid to the Company on Company Request,
or, if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as the
Holder of an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining unpaid,
and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make
any such payment to the Company, may at the expense of the
Company cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days
from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
SECTION 504. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Ten,
the Company shall do or cause to be done all things necessary to
preserve and keep its corporate existence in full force and
effect.
SECTION 505. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its businesses,
considered as a whole, to be maintained and kept in good
condition, repair and working order and shall cause (or, with
respect to property owned in common with others, make reasonable
effort to cause) to be made such repairs, renewals, replacements,
betterments and improvements thereof, as, in the judgment of the
Company, may be necessary in order that the operation of such
properties, considered as a whole, may be conducted in accordance
with common industry practice; provided, however, that nothing in
this Section shall prevent the Company from discontinuing, or
causing the discontinuance of, the operation and maintenance of
any of its properties; and provided, further, that nothing in
this Section shall prevent the Company from selling, transferring
or otherwise disposing of, or causing the sale, transfer or other
disposition of, any of its properties.
SECTION 506. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in
(a) any covenant or restriction specified with
respect to the Securities of any one or more series, or
any Tranche or Tranches thereof, as contemplated by
Section 301 if before the time for such compliance the
Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches
with respect to which compliance with such covenant or
restriction is to be omitted, considered as one class,
shall, by Act of such Holders, either waive such
compliance in such instance or generally waive
compliance with such term, provision or condition;
provided, however, that no such waiver shall be
effective as to any matters contemplated in clause (a),
(b) or (c) in Section 1102 without consent of the
Holders specified in such Section; and
(b) Section 504 or 505 or Article Ten if before
the time for such compliance the Holders of a majority
in principal amount of Securities Outstanding under
this Indenture shall, by Act of such Holders, either
waive such compliance in such instance or generally
waive compliance with such term, provision or
condition;
but, in either case, no such waiver shall extend to or affect
such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 507. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than December 1 in each year, commencing
December 1, 1998, the Company shall deliver to the Trustee an
Officer's Certificate which need not comply with Section 102,
executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 508. LIMITATION ON SECURED DEBT.
(a) On and after the Collateral Release Date and so
long as any Securities shall remain Outstanding, the Company
shall not create, issue, incur or assume any Secured Debt other
than Permitted Secured Debt without the consent of the Holders of
a majority in principal amount of the Outstanding Securities of
all series and Tranches, considered as one class.
(b) the provisions of clause (a) above shall not
prohibit the creation, issuance, incurrence or assumption of any
Secured Debt if either
(i) the Company shall make effective provision
whereby all Securities then Outstanding shall be
secured 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 the Securities then Outstanding,
(B) maturing (or being subject to mandatory redemption)
on such dates and in such principal amounts that, at
each Stated Maturity of the Outstanding Securities,
there shall mature (or be redeemed) Secured Obligations
equal in principal amount to the Securities then to
mature 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 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
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 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 clause (b) above, the Company shall
deliver to the Trustee:
(i) an indenture supplemental to the Indenture
(A) together with appropriate inter-creditor
arrangements, whereby all Securities then Outstanding
shall be secured by the Lien referred to in clause (b)
above 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, (1) no Event of Default
has occurred and is continuing and (2) 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;
(iii) an Opinion of Counsel (A) if the Securities
then Outstanding are to be secured by such Lien, to the
effect that all such Securities then Outstanding are
entitled to the benefit of such Lien equally and
ratably with all other indebtedness outstanding under
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 under such Lien.
(d) For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
"CONSOLIDATED TANGIBLE NET WORTH" means (i) common
stock equity minus (ii) the aggregate amount of all
intangible assets (other than intangible assets the cost of
which is expected by the Company to be recovered through
revenues from the sale of electrical capacity and/or energy
or the provision of related services), in each case as shown
on the consolidated balance sheet of the Company and its
consolidated subsidiaries, all as determined in accordance
with generally accepted accounting principles as applied to
entities conducting the same businesses as the Company.
"DEBT", with respect to any Person, means (i)
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 and (ii) any guaranty by such Person of any
such indebtedness of another Person. "Debt" does not
include, among other things, (x) 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, (y)
obligations of such Person under any lease agreement
(including any lease intended as security), whether or not
such obligations are required to be capitalized on the
balance sheet of such Person under generally accepted
accounting principles, or (z) liabilities secured by any
Lien on any property owned by such Person if and to the
extent that such Person has not assumed or otherwise become
liable for the payment thereof.
"EXCEPTED PROPERTY" means:
(i) all cash on hand or in banks or other financial
institutions, deposit accounts, shares of stock, interests
in general or limited partnerships, bonds, notes, other
evidences of indebtedness and other securities, of
whatsoever kind and nature, not hereafter paid or delivered
to, deposited with or held by the Trustee hereunder or
required so to be;
(ii) 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, in which case they are separately excepted under
clause (i) above); all revenues, income and earnings, all
accounts, accounts receivable and unbilled revenues, and all
rents, tolls, issues, products and profits, claims, credits,
demands and judgments; all governmental and other licenses,
permits, franchises, consents and allowances; and all
patents, patent licenses and other patent rights, patent
applications, trade names, trademarks, copyrights, claims,
credits, choses in action and other intangible property and
general intangibles including, but not limited to, computer
software;
(iii) 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;
(iv) 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 any property of the Company;
all fuel, including nuclear fuel, whether or not any such
fuel is in a form consumable in the operation of any
property of the Company, 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
facilities, machinery, equipment or fixtures of the Company
for (A) the generation, transmission or distribution of
electric energy, (B) the transmission, storage or
distribution of gas or (C) the appropriation, storage,
transmission or distribution of water;
(v) all coal, 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, gas (natural or artificial),
steam, water and other products generated, produced,
manufactured, purchased or otherwise acquired by the
Company;
(vi) 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; and
(vii) 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.
"LIEN" means any mortgage, deed of trust, pledge,
security interest, conditional sale or other title retention
agreement or any lease in the nature thereof.
"PERMITTED SECURED DEBT" means, as of any particular
time, any of the following:
(i) 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;
(ii) 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 (A) 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 (B) with respect to Purchase
Money Liens, other property subsequently acquired by the
Company;
(iii) Secured Debt relating to governmental
obligations the interest on which is not included in gross
income for purposes 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;
(iv) Secured Debt (A) which is related to the
construction or acquisition of property not previously owned
by the Company or (B) which is related to the financing of a
project involving the development or expansion of property
of the Company and (C) 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 such
Secured Debt by or with Secured Debt described in clause (C)
above;
(v) Secured Debt permitted under clause (b) above; and
(vi) in addition to the Permitted Secured Debt
described in clauses (i) through (v) above, Secured Debt not
otherwise permitted in this clause (c) in an aggregate
principal amount not exceeding 10% of the Consolidated
Tangible Net Worth of the Company and its consolidated
subsidiaries, as shown on the latest balance sheet of the
Company and its consolidated subsidiaries, audited by
independent certified public accountants, dated prior to the
date of the creation, issuance, incurrence or assumption of
such Secured Debt.
"PURCHASE MONEY LIEN" means, with respect to any
property being acquired by the Company, a Lien on such
property which
(i) is taken or retained by the transferor of such
property to secure all or part of the purchase price
thereof;
(ii) 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;
(iii) is held by a trustee or agent for the benefit of
one or more Persons described in clause (i) or (ii) 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
the benefit or account of the grantor of such Lien for one
or more other purposes; or
(iv) 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 (A) shall permit the issuance or other
incurrence of additional indebtedness secured by such Lien
on such property, (B) 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 (C) 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.
"SECURED DEBT", with respect to any Person, means Debt
created, issued, incurred or assumed by such Person 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, whether owned
at the date of the initial authentication and delivery of
Securities hereunder, or thereafter acquired.
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be satisfied and discharged,
if there shall have been irrevocably deposited with the Trustee
or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient,
or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Eligible Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof,
the principal of and the interest on which when due,
without any regard to reinvestment thereof, will
provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying
Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof; provided, however, that in the case of the
provision for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or portions
thereof shall have been selected by the Security Registrar as
provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been
given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order
stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 603;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel to the effect that
such obligations constitute Eligible Obligations and do
not contain provisions permitting the redemption or
other prepayment thereof at the option of the issuer
thereof, and an opinion of an independent public
accountant of nationally recognized standing, selected
by the Company, to the effect that the other
requirements set forth in clause (b) and, if
applicable, (c) above have been satisfied; and
(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Officer's
Certificate stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions
thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon Company Request, acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) (if otherwise required) shall not have
been delivered, such Securities or portions thereof shall
nevertheless be deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions thereof
shall nevertheless be no longer entitled to the benefits provided
by this Indenture or of any of the covenants of the Company under
Article Five (except the covenants contained in Sections 502 and
503) or any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or
portions thereof shall not be deemed to have been satisfied and
discharged prior to Maturity for any other purpose; and, upon
Company Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section, do not mature and are not to be redeemed within the
sixty (60) day period commencing with the date of the deposit of
moneys or Eligible Obligations, as aforesaid, the Company shall,
as promptly as practicable, give a notice, in the same manner as
a notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 502, 503, 807 and
814 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee
or any Paying Agent with which Eligible Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a)
if, at any time after a Security would be deemed to have been
paid for purposes of this Indenture, and, if such is the case,
the Company's indebtedness in respect thereof would be deemed to
have been satisfied and discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee
or any Paying Agent, as the case may be, (i) shall be required to
return the money or Eligible Obligations, or combination thereof,
deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law or (ii) are unable to apply any
money held by the Trustee as provided in this Section and Section
603 with respect to such Security by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, such
Security shall thereupon be deemed retroactively not to have been
paid and any satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be deemed not
to have been effected, and such Security shall be deemed to
remain Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of Section 503.
SECTION 602. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be
of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute such
instruments as the Company shall reasonably request to evidence
and acknowledge the satisfaction and discharge of this Indenture,
when:
(a) no Securities remain Outstanding hereunder;
and
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 601, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 502, 503, 807 and 814
and this Article shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall turn over to the
Company any and all money, securities and other property then
held by the Trustee for the benefit of the Holders of the
Securities (other than money and Eligible Obligations held by the
Trustee pursuant to Section 603) and shall execute and deliver to
the Company such instruments as, in the judgment of the Company,
shall be necessary, desirable or appropriate to effect or
evidence the satisfaction and discharge of this Indenture.
SECTION 603. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 601, nor the principal or interest
payments on any such Eligible Obligations, shall be withdrawn or
used for any purpose other than, and shall be held in trust for,
the payment of the principal of and premium, if any, and
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 503; provided,
however, that any cash received from such principal or interest
payments on such Eligible Obligations, if not then needed for
such purpose, shall, to the extent practicable and upon Company
Request and delivery to the Trustee of the documents referred to
in clause (y) in the first paragraph of Section 601, be invested
in Eligible Obligations of the type described in clause (b) in
the first paragraph of Section 601 maturing at such times and in
such amounts as shall be sufficient, together with any other
moneys and the proceeds of any other Eligible Obligations then
held by the Trustee, to pay when due the principal of and
premium, if any, and interest, if any, due and to become due on
such Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid
over to the Company as received, free and clear of any trust,
lien or pledge under this Indenture; and provided, further, that
any moneys held in accordance with this Section on the Maturity
of all such Securities in excess of the amount required to pay
the principal of and premium, if any, and interest, if any, then
due on such Securities shall be paid over to the Company free and
clear of any trust, lien or pledge under this Indenture; and
provided, further, that if an Event of Default shall have
occurred and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event of
Default shall have been waived or cured.
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect
to the Securities, means any of the following events which shall
have occurred and be continuing:
(a) failure to pay interest, if any, on any Security,
within sixty (60) days after the same becomes due and
payable if such failure shall occur prior to the Collateral
Release Date, or within thirty (30) days after the same
becomes due and payable if such failure shall occur on or
after the Collateral Release Date; provided, however, that
no such failure shall constitute an "Event of Default" if
the Company shall have made a valid extension of the
interest payment period with respect to the Securities of
the series, of which such Security is a part, if so provided
with respect to such series as contemplated by Section 301;
or
(b) failure to pay the principal of or premium, if
any, on any Security when due; provided, however, that no
such failure shall constitute an "Event of Default" if the
Company shall have made a valid extension of the Maturity of
the Securities of the series, of which such Security is a
part, if so provided with respect to such series as
contemplated by Section 301; or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty, a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with) for a period of ninety (90) days after there has
been given, by registered or certified mail, to the Company
by the Trustee, or to the Company and the Trustee by the
Holders of at least twenty-five percentum (25%) in principal
amount of the Securities then Outstanding, a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "NOTICE OF
DEFAULT" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities 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) a default under any bond, debenture, note or other
evidence of Debt of the Company or under any mortgage,
indenture or other instrument under which there may be
issued or by which there may be secured or evidenced any
Debt of the Company (including this Indenture), whether such
Debt now exists or shall hereafter be created, which default
(1) shall constitute a failure to make any payment in excess
of $5,000,000 of the principal of or interest on such Debt
when due and payable after the expiration of any applicable
grace period with respect thereto or (2) shall have resulted
in such Debt in an amount in excess of $10,000,000 becoming
or being declared due and payable prior to the date on which
it would otherwise have become due and payable, without such
payment having been made, such Debt having been discharged,
or such acceleration having been rescinded or annulled, as
the case may be, within a period of ninety (90) days after
there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least twenty-five percentum
(25%) in principal amount of the Securities then Outstanding
a written notice specifying such default and requiring the
Company to cause such payment to be made, such Debt to be
discharged or such acceleration to be rescinded or annulled,
as the case may be, and stating that such notice is a Notice
of Default hereunder; it being understood, however, that no
event described in this clause (d) shall constitute an Event
of Default prior to the Collateral Release Date; or
(e) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or
order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more
Persons other than the Company seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the
Company or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs, and
any such decree or order for relief or any such other decree
or order shall have remained unstayed and in effect for a
period of ninety (90) consecutive days; or
(f) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors.
(g) so long as the Trustee shall hold any Outstanding
Class A Bonds which were delivered to the Trustee in
connection with the authentication and delivery of
Securities which remain Outstanding hereunder, the
occurrence of a matured event of default under the Class A
Mortgage under which such Class A Bonds were authenticated
and delivered (other than any such matured event of default
which (i) is of similar kind or character to the Event of
Default described in clause (c) above and (ii) has not
resulted in the acceleration of the Class A Bonds
Outstanding under such Class A Mortgage); provided, however,
that, anything in this Indenture to the contrary
notwithstanding, the waiver or cure of any such event of
default under such Class A Mortgage and the rescission and
annulment of the consequences thereof under such Class A
Mortgage shall constitute a cure of the corresponding Event
of Default under this Indenture and a rescission and
annulment of the consequences thereof.
SECTION 702. 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 thirty-three percentum (33%) in principal amount of
the Securities then Outstanding may declare the principal amount
(or, if any of the Securities 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 then Outstanding to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon such declaration such
principal amount (or specified amount), together with premium, if
any, and accrued interest, if any, thereon, shall become
immediately due and payable, all subject, however, in the case of
an Event of Default described in clause (g) of Section 701, to
the proviso contained in such clause (g).
At any time after such a declaration of acceleration of
the maturity of the Securities then Outstanding shall have been
made, but before a judgment or decree for payment of the money
due shall have been obtained by the Trustee as provided in this
Article, such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with
the Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all
Securities 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, if any, thereon at the
rate or rates prescribed therefor in such
Securities;
(iii) interest, if any, upon overdue
interest, if any, at the rate or rates prescribed
therefor in such Securities, to the extent that
payment of such interest is lawful; and
(iv) all amounts due to the Trustee under
Section 807; and
(b) all Events of Default, other than the non-
payment of the principal of Securities of such series
which shall have become due solely by such declaration
of acceleration, shall have been cured or waived as
provided in Section 713.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 703. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b)
of Section 701 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities 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, in addition thereto, such further amount
as shall be sufficient to cover any amounts due to the Trustee
under Section 807.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default 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 the
Securities then Outstanding by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 704. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, to the extent
permitted by law, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal
or premium, if any, or interest, if any, upon presentation of the
Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 807;
SECOND: To the payment of the whole amount then due
and unpaid upon the Outstanding Securities for principal and
premium, if any, and interest, if any, in respect of which
or for the benefit of which such money has been collected;
and in case such proceeds shall be insufficient to pay in
full the whole amount so due and unpaid upon such
Securities, then to the payment of such principal and
interest, if any, thereon without any preference or
priority, ratably according to the aggregate amount so due
and unpaid, with any balance then remaining to the payment
of premium, if any, and, if so specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, interest, if any, on overdue premium,
if any, and overdue interest, if any, ratably as aforesaid,
all to the extent permitted by applicable law;
THIRD: To the payment of the remainder, if any, to
the Company or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may
direct.
SECTION 705. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 807) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 807.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 706. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or
on the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 707. LIMITATION ON SUITS.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default;
(b) the Holders of a majority in aggregate principal
amount of the Securities then Outstanding shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for sixty (60) days after its receipt
of such notice, request and offer of indemnity shall have
failed to institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such
sixty (60) day period by the Holders of a majority in
aggregate principal amount of the Securities then
Outstanding.
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 708. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 709. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 710. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 711. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 712. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be
continuing, the Holders of a majority in principal amount of the
Securities then Outstanding shall have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Securities of such
series; provided, however, that
(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,
(b) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not
taking part in such direction, and
(c) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 713. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the
Securities then Outstanding may on behalf of the Holders of all
the Securities then Outstanding 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 Security then Outstanding,
or
(b) in respect of a covenant or provision hereof which
under Section 1102 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of 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 714. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by
its acceptance of a Security shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant, all in the
manner, to the extent and except as provided in the Trust
Indenture Act; but the provisions of this Section shall not apply
to any suit instituted by the Company, to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than ten percentum (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 715. WAIVER OF STAY OR EXTENSION LAWS.
To the full extent that it may lawfully so agree, the
Company shall not at any time set up, claim or otherwise seek to
take the benefit or advantage of any stay or extension law, now
or hereafter in effect, in order to prevent or hinder the
enforcement of this Indenture; and the Company, for itself and
all who may claim under it, so far as it or they now or hereafter
may lawfully do so, hereby waives the benefit of all such laws.
SECTION 716. DEFAULTS UNDER CLASS A MORTGAGES.
In addition to every other right and remedy provided
herein, the Trustee may (but shall not be obligated to) exercise
any right or remedy available to the Trustee in its capacity as
owner and holder of Class A Bonds which arises as a result of a
default or matured event of default under any Class A Mortgage,
whether or not an Event of Default shall then have occurred and
be continuing.
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of
Default,
(i) the Trustee undertakes to perform such
series, such duties and only such duties as are
specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default shall have occurred
and be continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this subsection shall not be construed to
limit the effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the
Securities then Outstanding, as provided herein,
relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the
Securities of such series; and
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 802. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any
default hereunder in the manner and to the extent required to do
so by the Trust Indenture Act, unless such default shall have
been cured or waived; provided, however, that in the case of any
default of the character specified in Section 701(c), no such
notice to Holders shall be given until at least seventy-five (75)
days after the occurrence thereof; and provided, further, that,
subject to the provisions of Section 801, the Trustee shall not
be deemed to have knowledge of such default unless either (i) a
Responsible Officer of the Trustee shall have actual knowledge of
such default or (ii) the Trustee shall have received written
notice thereof from the Company or any Holder or, in the case of
a default described in Section 701(d), from the holder of any
indebtedness or from the trustee under any mortgage, indenture or
other instrument referred to in such Section. For the purpose of
this Section, the term "default" means any event which is, or
after notice or lapse of time, or both, would become, an Event of
Default. The Trustee shall give to the trustee under each Class
A Mortgage a copy of each notice of default given to the Holders
pursuant to this Section. In addition, the Trustee shall give to
the Holders copies of each notice of default under any Class A
Mortgage given to the Trustee in its capacity as owner and holder
of Class A Bonds delivered thereunder.
SECTION 803. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 801 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties;
(b) any request, direction or act of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or as otherwise expressly
provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence is
specifically prescribed herein) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any Holder pursuant
to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it complying with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled
to examine, during normal business hours, the books, records
and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default unless either (i) a Responsible Officer
of the Trustee shall have actual knowledge of the Event of
Default or (ii) written notice of such Event of Default
shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such
Securities or, in the case of a default described in Section
701(d), from the holder of any indebtedness or from the
trustee under any mortgage, indenture or other instrument
referred to in such Section.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities
(except the Trustee's certificates of authentication) shall be
taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 805. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to
Sections 808 and 813, may otherwise deal with the Company with
the same rights it would have if it were not such Trustee,
Authenticating Agent, Paying Agent, Security Registrar or other
agent.
SECTION 806. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on or
investment of any money received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the
sole benefit of, the Company.
SECTION 807. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from
and against any loss, liability or expense reasonably
incurred by it arising out of or in connection with the
acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder,
including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 603 (except moneys payable to the
Company as provided in Section 603). "Trustee" for purposes of
this Section shall include any predecessor Trustee; provided,
however, that the negligence, wilful misconduct or bad faith of
any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
SECTION 808. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any 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.
SECTION 809. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under
the laws of the United States, any State or Territory
thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least Ten Million Dollars
($10,000,000) and subject to supervision or examination by
Federal, State, Territorial or District of Columbia
authority, or
(b) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a corporation
or other Person organized and doing business under the laws
of a foreign government, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least Fifty Million Dollars ($50,000,000)
or the Dollar equivalent of the applicable foreign currency
and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section or the Trust
Indenture Act, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 811.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 811 shall
not have been delivered to the Trustee within thirty (30) days
after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of
the Holders of a majority in principal amount of the Securities
then Outstanding delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
808 after written request therefor by the Company or by
any Holder who has been a bona fide Holder for at least
six months, or
(ii) the Trustee shall cease to be eligible under
Section 809 or Section 310(a) of the Trust Indenture
Act and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or
a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company may remove the Trustee
with respect to all Securities or (y) subject to Section 714, any
Holder who has been a bona fide Holder for at least six (6)
months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee
or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated in clause (y)
in subsection (d) of this Section), the Company shall take prompt
steps to appoint a successor Trustee or Trustees and shall comply
with the applicable requirements of Section 811. If, within one
(1) year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount
of the Securities then Outstanding delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 811, become the
successor Trustee 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 811, any Holder who
has been a bona fide Holder of a Security for at least six (6)
months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default shall
have occurred and be continuing, if the Company shall have
delivered to the Trustee (i) an instrument executed by an
Authorized Officer appointing a successor Trustee or Trustees,
effective as of a date specified therein, and (ii) an instrument
of acceptance of such appointment, effective as of such date, by
such successor Trustee or Trustees in accordance with Section
811, the Trustee or Trustees shall be deemed to have resigned as
contemplated in subsection (b) of this Section, the successor
Trustee or Trustees shall be deemed to have been appointed
pursuant to subsection (e) of this Section and such appointment
shall be deemed to have been accepted as contemplated in Section
811, all as of such date, and all other provisions of this
Section and Section 811 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a
successor Trustee to all Holders of Securities. Each notice
shall include the name of the successor Trustee and the address
of its corporate trust office.
SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a
successor Trustee, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any
further act, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of
the Company or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute and deliver
an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) Upon reasonable request of any such successor
Trustee, the Company shall execute instruments to more fully and
certainly vest in and confirm to such successor Trustee all
rights, powers and trusts referred to in subsection (a) 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 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "CASH TRANSACTION" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) the term "SELF-LIQUIDATING PAPER" means any draft,
xxxx of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company or such obligor
for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company or such obligor
arising from the making, drawing, negotiating or incurring
of the draft, xxxx of exchange, acceptance or obligation.
SECTION 814. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
any Tranche thereof, which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series or
Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States,
any State or Territory thereof or the District of Columbia or the
Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than Ten Million Dollars ($10,000,000) and subject to
supervision or examination by Federal or State authority. If
such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to all or substantially all
of the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper
or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section.
The provisions of Sections 308, 804 and 805 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
------------------------
As Trustee
By----------------------
As Authenticating Agent
By----------------------
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
SECTION 901. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31 in
each year, commencing June 30, 1999, and within 30 days of such
other times as the Trustee may request in writing, the Company
shall furnish or cause to be furnished to the Trustee information
as to the names and addresses of the Holders, as of a date no
more than fifteen (15) days prior to the date such information is
so furnished, and the Trustee shall preserve such information and
similar information received by it in any other capacity and
afford to the Holders access to information so preserved by it,
all to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however, that no
such list need be furnished so long as the Trustee shall be the
Security Registrar.
SECTION 902. REPORTS BY TRUSTEE AND COMPANY.
Not later than November 15 in each year, commencing
November 15, 1999, the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding September
15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within thirty (30) days after filing
with the Commission in the case of reports which pursuant to the
Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other
information, reports and other documents, if any, at such times
and in such manner, as shall be required by the Trust Indenture
Act. The Company shall notify the Trustee of the listing of any
Securities on any securities exchange.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into
any other Person, or convey or otherwise transfer, or lease, all
of its properties, as or substantially as an entirety, to any
Person, unless:
(a) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or other transfer, or which leases (for a term
extending beyond the last Stated Maturity of the Securities
then Outstanding), all of the properties of the Company, as
or substantially as an entirety, shall be a Person organized
and existing under the laws of the United States, any State
or Territory thereof or the District of Columbia or under
the laws of Canada or any Province thereof (such corporation
being hereinafter sometimes called the "SUCCESSOR") and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of
the principal of and premium, if any, and interest, if any,
on all the Securities then Outstanding and the performance
and observance of every covenant and condition of this
Indenture to be performed or observed by the Company; and
(b) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each of
which shall state that such consolidation, merger,
conveyance or other transfer or lease, and such supplemental
indenture, comply with this Article and that all conditions
precedent herein provided for relating to such transaction
have been complied with.
Anything in this Indenture to the contrary
notwithstanding, the conveyance or other transfer, or lease, by
the Company of all of its facilities (a) for the generation of
electric energy, (b) for the transmission of electric energy or
(c) for the distribution of electric energy, in each case
considered alone, or all of its facilities described in clauses
(a) and (b), considered together, or all of its facilities
described in clauses (b) and (c), considered together, shall in
no event be deemed to constitute a conveyance or other transfer,
or lease, of all the properties of the Company, as or
substantially as an entirety, unless, immediately following such
conveyance, transfer or lease, the Company shall own no unleased
properties in the other such categories of property not so
conveyed or otherwise transferred or leased. The character of
particular facilities shall be determined by reference to the
Uniform System of Accounts prescribed for public utilities and
licensees subject to the Federal Power Act, as amended, to the
extent applicable.
SECTION 1002. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger or any conveyance or
other transfer of all the properties of the Company, as or
substantially as an entirety, in accordance with Section 1001,
the Successor shall succeed to, and be substituted for, and may
exercise every power and right of, the Company under this
Indenture with the same effect as if such Successor had been
named as the "Company" herein. Without limiting the generality
of the foregoing, the Successor may execute and deliver to the
Trustee, and thereupon the Trustee shall, subject to the
provisions of Article Three, authenticate and deliver,
Securities. All Securities so executed by the Successor, and
authenticated and delivered by the Trustee, shall in all respects
be entitled to the benefits provided by this Indenture equally
and ratably with all Securities executed, authenticated and
delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective.
SECTION 1003. RELEASE OF COMPANY UPON CONVEYANCE OR OTHER
TRANSFER.
In the case of a conveyance or other transfer to any
Person or Persons as contemplated in Section 1001, upon the
satisfaction of all the conditions specified in Section 1001 the
Company (such term being used in this Section without giving
effect to such transaction) shall be released and discharged from
all obligations and covenants under this Indenture and on and
under all Securities then Outstanding (unless the Company shall
have delivered to the Trustee an instrument in which it shall
waive such release and discharge) and the Trustee shall
acknowledge in writing that the Company has been so released and
discharged.
SECTION 1004. MERGER INTO COMPANY.
Nothing in this Indenture shall be deemed to prevent or
restrict any consolidation or merger after the consummation of
which the Company would be the surviving or resulting entity or
any conveyance or other transfer, or lease of any part of the
properties of the Company which does not constitute the entirety,
or substantially the entirety, thereof.
SECTION 1005. TRANSFER OF LESS THAN THE ENTIRETY.
(a) If, at any time after the Collateral Release Date,
the Company shall have conveyed or otherwise transferred any part
of its properties which does not constitute the entirety, or
substantially the entirety, thereof to another Person meeting the
requirements set forth in clause (a) of the first paragraph of
Section 1001 and if:
(i) the transferee of such part of the properties
of the Company shall have executed and delivered to the
Trustee an indenture supplemental hereto, in form
reasonably satisfactory to the Trustee, which contains
an assumption by such transferee of the due and
punctual payment of the principal of and premium, if
any, and interest, if any, on all the Securities then
Outstanding and the performance and observance of every
covenant and condition of this Indenture to be
performed or observed by the Company;
(ii) there shall have been delivered to the
Trustee an Independent Expert's Certificate
(A) describing the property so conveyed or
otherwise transferred (such description of
property to be made by reference either to
specific items, units and/or elements of property
or portions thereof, on a percentage or Dollar
basis, or to properties reflected in specified
accounts in the Company's books of account or
portions thereof, on a Dollar basis); provided,
however, that such property shall be identified in
such certificate as facilities for the generation,
transmission or distribution of electric energy;
(B) stating, in the judgment of the signers,
the fair value to the transferee of the property
so conveyed or otherwise transferred; provided,
however, that there shall be excluded from the
property so evaluated any property subject to any
mortgage, deed of trust, security interest or
other lien which secures indebtedness for borrowed
money or for the deferred purchase price of
property;
(C) stating an amount equal to seventy
percent (70%) of the amount stated pursuant to
clause (B) above;
(D) stating an amount equal to the aggregate
principal amount of the Securities then
Outstanding; and
(E) stating that the amount stated pursuant
to clause (D) above does not exceed the amount
stated pursuant to clause (C) above; and
(iii) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel each of which shall state that such conveyance
or other transfer and such supplemental indenture
comply with this Section and that all conditions
precedent relating to such transactions provided for in
this Section and otherwise in this Indenture have been
complied with;
then, upon the satisfaction of all such conditions,
(x) the Company shall be released and discharged from
all obligations and covenants under this Indenture and on
and under all Securities then Outstanding (unless the
Company shall have delivered to the Trustee an instrument in
which it shall waive such release and discharge), and the
Trustee shall acknowledge in writing that the Company has
been so released and discharged; and
(y) if the Company shall have been released and
discharged as contemplated in clause (x) above, such
transferee shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such transferee had
been named the "Company" herein; and without limiting the
generality of the foregoing, such transferee shall be deemed
a "Successor" for purposes of Section 1002 and for all other
purposes of this Indenture.
In assessing the fair value of such property so
conveyed or otherwise transferred, an Expert may consider, among
other things (a) the amount which would be likely to be obtained
in an arm's-length transaction with respect to such property
between an informed and willing buyer and an informed and willing
seller, under no compulsion, respectively, to buy or sell, (b)
the amount of investment with respect to such property which,
together with a reasonable return thereon, would be likely to be
recovered through ordinary business operations or otherwise, (c)
the cost, accumulated depreciation and replacement cost with
respect to such property and/or (d) any other relevant factors;
provided, however, that (x) the fair value of property shall be
determined without deduction for any mortgage, deed of trust,
pledge, security interest, encumbrance, lease, reservation,
restriction, servitude, charge or similar right or any other lien
of any kind on such property and (y) the fair value to the
transferee of any property shall not reflect any reduction
relating to the fact that such property may be of less value to a
Person which is not the owner or operator of the property or any
portion thereof than to a Person which is such owner or operator.
Fair value may be determined, without physical inspection, by the
use of accounting and engineering records and other data
maintained by the Company or the transferee or otherwise
available to the Expert certifying the same.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person
to the Company and the assumption by any such successor
of the covenants of the Company herein and in the
Securities, all as provided in Article Ten; or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any
right or power herein conferred upon the Company; or
(c) to change or eliminate any provision of this
Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series or
Tranche in any material respect, such change,
elimination or addition shall become effective with
respect to such series or Tranche only when no Security
of such series or Tranche remains Outstanding; or
(d) to provide additional collateral security for
the Securities; or
(e) to establish the form or terms of Securities
of any series or Tranche as contemplated by Sections
201 and 301; or
(f) to provide for the authentication and
delivery of bearer securities and coupons appertaining
thereto representing interest, if any, thereon and for
the procedures for the registration, exchange and
replacement thereof and for the giving of notice to,
and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters
incidental thereto; or
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee or by a
co-trustee or separate trustee; or
(h) to provide for the procedures required to
permit the Company to utilize, at its option, a non-
certificated system of registration for all, or any
series or Tranche of, the Securities; or
(i) to change any place or places where (1) the
principal of and premium, if any, and interest, if any,
on all or any series of Securities, or any Tranche
thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered
for registration of transfer, (3) all or any series of
Securities, or any Tranche thereof, may be surrendered
for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities,
or any Tranche thereof, and this Indenture may be
served; or
(j) to cure any ambiguity, to correct or
supplement any provision herein which may be defective
or inconsistent with any other provision herein; or to
make any other changes to the provisions hereof or to
add other provisions with respect to matters or
questions arising under this Indenture, provided that
such other changes or additions shall not adversely
affect the interests of the Holders of Securities of
any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the execution
and delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or
more changes to any provisions hereof or the inclusion
herein of any additional provisions, or shall by
operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to evidence such amendment hereof;
or
(y) if any such amendment shall permit one or
more changes to, or the elimination of, any provisions
hereof which, at the date of the execution and delivery
hereof or at any time thereafter, are required by the
Trust Indenture Act to be contained herein or are
contained herein to reflect any provisions of the Trust
Indenture Act as in effect at such date, this Indenture
shall be deemed to have been amended to effect such
changes or elimination, and the Company and the Trustee
may, without the consent of any Holders, enter into an
indenture supplemental hereto to amend this Indenture
to effect such changes or elimination.
SECTION 1102. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1101, with the
consent of the Holders of a majority in aggregate principal
amount of the Securities of all series then Outstanding under
this Indenture, considered as one class, by Act of said Holders
delivered to the Company and the Trustee, the Company and the
Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this
Indenture; provided, however, that if there shall be Securities
of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be
required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the
proposed supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less than all,
of such Tranches, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected, considered as
one class, shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on,
any Security other than pursuant to the terms thereof,
or reduce the principal amount thereof or the rate of
interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating
such rate or reduce any premium payable thereon, or
reduce the amount of the principal of any Discount
Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 702, or change the coin or currency
(or other property), in which any Security or premium,
if any, or interest, if any, thereon is payable, or
impair the right to institute suit for the enforcement
of any such payment on or after the Maturity of any
Security, without, in any such case, the consent of the
Holder of such Security; or
(b) permit the creation of any Lien ranking prior
to the Lien of this Indenture with respect to any Class
A Bond delivered to and held by the Trustee pursuant to
Article Three, or (except in accordance with the
provisions of Article Three) terminate a Lien of this
Indenture on any such Class A Bond or deprive the
Holders of the benefit of the Lien of this Indenture on
any Class A Bond, without, in any such case, the
consent of the Holders of all Securities then
Outstanding; or
(c) 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
1204 for quorum or voting, without, in any such case,
the consent of the Holder of each Outstanding Security
of such series or Tranche; or
(d) modify any of the provisions of this Section,
Section 506 or Section 713 with respect to the
Securities of any series or any Tranche thereof (except
to increase the percentages in principal amount
referred to in this Section or such other Sections or
to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the
Holders of all Securities of such series or Tranche)
without, in any such case, the consent of the Holder of
each Outstanding Security of such series or Tranche;
provided, 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 811(b) and 1101(g).
A supplemental indenture which (x) changes or
eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the benefit of the
Holders of, or which is to remain in effect only so long as there
shall be Outstanding, Securities of one or more specified series,
or one or more Tranches thereof, or (y) modifies the rights of
the Holders of Securities of such series or Tranches with respect
to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
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 so provide, (a) the Holders of such
Securities shall be deemed to have consented to a supplemental
indenture containing the additions, changes or eliminations to or
from the 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 1103. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 801) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1104. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution and delivery of any supplemental
indenture under this Article this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture
permitted by this Article may restate this Indenture in its
entirety, and, upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1105. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act.
SECTION 1106. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1107. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular
series of Securities shall have been established in an Officer's
Certificate or a Board Resolution as contemplated by Section 301,
and not in a supplemental indenture, additions to, changes in or
the elimination of any of such terms may be effected by means of
a supplemental Officer's Certificate or a supplemental Board
Resolution, as the case may be, delivered to, and accepted by,
the Trustee; provided, however, that such supplemental Officer's
Certificate or supplemental Board Resolution shall not be
accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to
be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Officer's Certificate or
supplemental Board Resolution shall be deemed to be a
"supplemental indenture" for purposes of Section 1104 and 1106.
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1202. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in Section
1201, to be held at such time and (except as provided in
subsection (b) of this Section) at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other place. Notice
of every such meeting, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in
Section 106, not less than twenty-one (21) nor more than one
hundred eighty (180) days prior to the date fixed for the
meeting.
(b) The Trustee may be asked to call a meeting of the
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, by the Company or by the Holders of
thirty-three percentum (33%) in aggregate principal amount of all
of such series and Tranches, considered as one class, for any
purpose specified in Section 1201, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting. If the Trustee shall have been asked by the Company to
call such a meeting, the Company shall determine the time and
place for such meeting and may call such meeting by giving notice
thereof in the manner provided in subsection (a) of this Section,
or shall direct the Trustee, in the name and at the expense of
the Company, to give such notice. If the Trustee shall have been
asked to call such a meeting by Holders in accordance with this
subsection (b), and the Trustee shall not have given the notice
of such meeting within twenty-one (21) days after receipt of such
request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Holders of Securities of
such series and Tranches, in the principal amount above
specified, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as shall
be determined or approved by the Company, for such meeting and
may call such meeting for such purposes by giving notice thereof
as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof, shall
be valid without notice if the Holders of all Outstanding
Securities of such series or Tranches are present in person or by
proxy and if representatives of the Company and the Trustee are
present, or if notice is waived in writing before or after the
meeting by the Holders of all Outstanding Securities of such
series, or any Tranche or Tranches thereof, or by such of them as
are not present at the meeting in person or by proxy, and by the
Company and the Trustee.
SECTION 1203. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1204. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding 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 1205(e), notice
of the reconvening of any meeting adjourned for more than thirty
(30) days shall be given as provided in Section 106 not less than
ten (10) days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1102, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have
been held, whether or not present or represented at the meeting.
SECTION 1205. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted by
law, any such proxy shall remain in effect and be binding upon
any future Holder of the Securities with respect to which it was
given unless and until specifically revoked by the Holder or
future Holder (except as provided in Section 104(g)) of such
Securities before being voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities in
regard to proof of the holding of such Securities and of the
appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any such regulations and approved by the Company, the
holding of Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104. Such regulations may
provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders as provided
in Section 1202(b), in which case the Company or the Holders of
Securities of the series and Tranches calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each One Thousand Dollars ($1,000)
principal amount of Outstanding Securities held or represented by
such Holder; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1202
at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
SECTION 1206. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches
with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record in duplicate
of the proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be attached to
such record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that such notice was given as
provided in Section 1202 and, if applicable, Section 1204. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
SECTION 1207. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 1301. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon
or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or
future, of the Company or of any predecessor or successor
corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or
any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom
or therefrom; and such personal liability, if any, is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution and delivery of this
Indenture and the issuance of the Securities.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
TUCSON ELECTRIC POWER COMPANY
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and
Treasurer
BANK OF MONTREAL TRUST COMPANY, Trustee
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
